# Petition for Writ of Certiorari — Northwest Louisiana Fish & Game Commission v. United States (No. 09-516)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## Text

|43 (1) Supreme Court, U.S.

No.09-- 99-516 OCT 2& 2008

_ mupe PICE OF THE CLERK

Supreme Court of the Bnited States

NORTHWEST LOUISIANA FISH &
GAME PRESERVE COMMISSION,

Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

APPEAL FROM THE UNITED STATES Court
OF FEDERAL CLAIMS

PETITION FOR A WRIT OF CERTIORARI

WILLIAM P. CREws, JR.

WILLIAM P Crews, JR., L.L.C.
Post Office Box 1036
Natchitoches, Louisiana 71458
(318) 356-8001

Counsel for Petitioner

226010 cr

COUNSEL PRESS
(800) 274-3321 » (800) 359-6859

a
QUESTIONS PRESENTED

How can the federal navigational servitude legally
apply above the normal or ordinary high water mark
of the Red River, or extend to the Northwest
Louisiana Fish and Game Preserve through a
tributary that is not used for trade or commerce and
a dam built by the State of Louisiana in 1931?

How can the courts justify granting a privilege
without material basis to the public purpose of
navigation while denying special protection to any
other public uses, when just compensation for the
taking of private property is a due process right
guaranteed by the Fifth Amendment of the United
States Constitution?

eR ee ne Te ee ee eee ee ee ee ee ee ee ee ee

10
CORPORATE DISCLOSURE STATEMENT

The Northwest Louisiana Fish & Game Preserve
Commission (the “Preserve Commission”) is the
Louisiana state agency in possession of the Northwest
Louisiana Fish and Game Preserve made up of Black
Lake, Saline Lake, and Clear Lake in the Parish of
Natchitoches, Louisiana. The Preserve Commission is
the state entity responsible for the fish and game
preserve situated in rural northwestern Louisiana made
up of several lakes and contiguous land commonly
referred to as Black Lake Complex.

iii

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ................ i
CORPORATE DISCLOSURE STATEMENT .. ii
TABLE OF CONT ENED cccccccsocsenzvewans ill
TABLES OF APPENDICES oc ceccccccsesseves Vv
TABLE OF CITED AUTHORITIES ......... vi
Cr aera SY doi ceeneeciawioebeeeseus 1
JURISDICTIONAL STATEMENT .......... ]
CONSTITUTIONAL PROVISIONS
aos 4930 koe ee 1
STATEMENT OF THE CASE ............... 2
REASONS FOR GRANTING THE PETITION .. 10
I. REVIEW IS WARRANTED TO
ADDRESS THE MISAPPLICATION
OF THE NAVIGATIONAL SERVI-
TUDE TO THE FACTS OF THIS
CEE sn SAS ee Re eee eee 13

A. The Navigational Servitude Does not
Extend to the Northwest Louisiana
Fish and Game Preserve .......... 13

iv

Contents
Page

Il. REVIEW IS WARRANTED TO
RESOLVE THE CONFLICT IN
TREATMENT BETWEEN NAVIGA-
TION AND OTHER PUBLIC USES,
THE TAKING OF WHICH ARE
COMPENSABLE UNDER THE
UNITED STATES CONSTITUTION .. 23

ED erie ee Vansavave kneeadeosueses 30

Vv

TABLE OF APPENDICES

Page
Appendix A — Opinion Of The United States
Court Of Appeals For The Federal Circuit
ROUSE PU Oh, BD oon cccccccesecnsnsess la

Appendix B — Opinion Of The United States
Court Of Federal Claims Filed October 31,
PCy as 5c ae os cents h de oe Par ee pene l6a

vi

TABLE OF CITEDAUTHORITIES

Page
Cases:
Alameda Gateway, Ltd. v. U.S., 45 Fed.Cl. 757
eo iN as oes curd seen aeeaeses 13

Banks v. U.S., 2003 WL 18410 (C.A.Fed. 2003) ...10, 11

Banks v. U.S., 71 Fed.Cl. 501 (Fed.Cl.,2006) .... 26
Boling v. U.S., 220 F.3d 1365 (C.A.Fed. 2000) .. = 11
Boone v. U.S., 944 F.2d 1489 (C.A.9.Haw.,1991) .... 18,14

Dardar v. Lafourche Realty Co., Inc., 985 F.2d
PPO r errr ere TT eT re Tere 27

Farmland Preservation Ass’n v. Goldschmidt,
1g. 9 fon 8 2. .) | 27

Federal Real Estate & Storage Co. v. U.S.,
(4% he cee 26 ee 27

First Unitarian Church of Salt Lake City v. Salt
Lake City Corp., 308 F.3d 1114 (C.A.10,2002)

Fruin-Colnon Corp. v. Vogt, 500 FSupp. 606
I os cae vA RA ORE OME ORO Oe 27

vil

Cited Authorities

Page
Goose Creek Hunting Club, Inc. v. United States,
518 F.2d 579, 582, 207 Ct.Cl. 323 (1975) ..... 17, 18
Kaiser Aetna v. U. S., 444 U.S. 164 (1979) ...:.
PE Eee ee eS en EN A 11, 12, 138, 21
Kingsport Horizontal Property Regime v. U.S.,
46 Fed.Cl. (Fed.Cl.,2000) .............2. ee. 16
Lingle v. Chevron U.S.A. Inc., 125 $.Ct. 2074,
544 U.S. 528, 161 L.Ed.2d 876 (2005) ....... 24
Lykes Bros., Inc., v. U.S. Army Corps of
Engineers, 821 F.Supp. 1457 (M.D.F la. 1993)
Eee Reh eee Cee ERK EEK SARE ERESA LE EEERSEOD 17
Maritrans Inc. v. U.S.; 342 F.3d 1844
ne oe ae eee yen eeu Ew Ss 25
Northwest Louisiana Fish & Game Preserve
Commission v. U.S., 574 F.3d 1386
(C.A.Fed.,2009), 62 Fed.Cl. 760, 446 F.3d 1285,
a es aaa sau ckue dee een exe 1

Owen v. U.S., 851 F.2d 1404 (C.A.Fed.,1988) ...
a a te ee ae re eee 10, 11, 14, 15

Palm Beach Isles Assoc. v. U.S., 2008
WL 22987826 Fed.Cl..2008 .......cccccccces 13

vill

Cited Authorities

Page

Parm v. Shumate, 518 F.3d 135 (C.A.5.La.,2007)
PTET eT eee ee eee ee eee oer 26

Ridge Line, Inc. v. U.S., 346 F.3d 1346
(oe Rk errr Sere ree 25

Sarpy County, Neb. v. U. S., 386 F.2d 453,
181 Ct.CL. 666 (CL.CLIOGT) .. .cccccccvsccens 29
State of Illinois v. U.S., 15 Cl.Ct. 399 (1988) ... = 21
State of Wash. v. U.S., 214 F2d 33 (C.A.9, 1954) .... 29

Tri-State Materials Corp. v. U.S., 550 F.2d 1
CB BUTE) 6.6 6460 000005044005 eas eeeieee 11, 14

U.S. v. 30.54 Acres of Land, More or Less,
Situated in Greene County, Com. of Pa.,

90 F.3d 790 (C.A.3,1996) ........ ccc c ee eeee 25
U.S. v. Ballinger, 395 F.3d 1218 (C.A.11.Ga.,2005)
saeeuesb end p2408 ¥0ss60 sae 26
U.S. v. Certain Parcels of Land in Kent County,
Mich., 252 FSupp. 319 (D.C.Mich. 1966) .... 28
U.S. v. Cress, 243 U.S. 316 (U.S. 1917) ........ 17

U.S. v. Fuller, 93 S.Ct. 801, 409 U.S. 488,
SO Ss MO SO CROUED. di csvcsedecetcese vanes 24

ix

Cited Authorities
Page
U.S. v. Gossler, 60 FSupp. 971 (D.C.Or.1945)... = 27
United States v. General Motors Corp., 323 U.S.
373, 65 S.Ct. 357, 89 L.Ed. 311 (1945) ...... 21, 28
United States v. Kansas City Life Ins. Co.,
a 11, 16

U.S. v. Shahani-Jahromi, 286 F.Supp.2d 723
ee sce ceeeesececeeeses 26

U.S. v. Virginia Elec. & Power Co., 81 S.Ct. 784
ee ees ch eye e sce srececcece 13

U. S. ex rel. Tenn. Valley Authority v. Welch,
66 S.Ct. 715, 327 U.S. 546, 90 L.Ed. 843 (1946)

a ala 25
U.S. v. Willow River Power Co., 324 U.S.
cscs cevccsceseses 19, 20, 21
Village of Norwood v. Baker, 19 S.Ct. 187, 172
U.S. 269, 43 L.Ed. 443 (1898) .............. 24
United States Constitution:
AE, i, 1, 23, 24

U.8.C.A. Const. Art. 1 § 8, cl. ......ccccccscces 2, 26

Cited Authorities

Page
Statutes:
I ne i eee 1
Ot ie ate ere a aaa )

Other Authorities:
LA Op.Atty.Gen., No. 92-472 (Oct. 22, 1992) .... 2

La. R.S. 9:1101

eae Gee eCeee eee Bes eaves eos 66400680 .8.4

]
OPINION BELOW

The opinion of the United States Court of Appeals
for the Federal Circuit is reported at Northwest
Louisiana Fish & Game Preserve Commission v. U.S.,
574 F.3d 1386 (C.A.Fed.,2009). The government originally
moved for judgment on the pleadings, which was
granted by the United States Court of Federal Claims,
Nancy B. Firestone, 62 Fed.Cl. 760. Following reversal
of the judgment and remand, 446 F.3d 1285, the
government again moved for judgment on pleadings.
The United States Court of Federal Claims, 79 Fed.Cl.
400, granted the government’s motion. On appeal, the
Federal Circuit, Rader, Circuit Judge, held that the
property interests of petitioner, the Preserve
Commission, in the lake and contiguous lands were
subservient to the navigational servitude and affirmed,
Northwest Louisiana Fish & Game Preserve
Commission v. U.S., 574 F.3d 1386 (C.A.Fed.,2009).
Judge Rader also filed an Additional View.

JURISDICTIONAL STATEMENT

This Court’s jurisdiction is invoked under 28 U.S.C.
§ 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

U.S.C.A. Const.Amend. 5.

“No person shall be...deprived of life, liberty, or
property, without due process of law; nor shall private
property be taken for public use, without just
compensation.”

2
U.S.C.A. Const. Art. I § 8, cl. 3.

Congress shall have power “To regulate Commerce
with foreign Nations, and among the several States, and
with the Indian Tribes.”

STATEMENT OF THE CASE

The fish and game preserve at issue was created on
1926 as a wildlife and fisheries habitat and recreational
area for the citizens of the State. The purpose of the
preserve is to provide Louisiana residents and visitors
with use and enjoyment. The Preserve Commission
functions as the entity to effectuate and protect those
objectives.

Black Lake Complex, is connected to Red River by
a tributary called Saline Bayou, through which flood
waters were historically released and the lake was
periodically drawn down in order to facilitate
maintenance of the preserve. At one end of the tributary
is Allen Dam, which was constructed by the State of
Louisiana shortly after the creation of the fish and game
preserve.

Title to the land around and under the lake, as well
as the lake itself, is held by the State of Louisiana. The
State owns and has owned lakes and lake beds to the
exclusion of others by virtue of its inherent sovereignty
since 1812, the date of admission to the union, and
then by enactment of specific legislation in 1910.
Op.Atty.Gen., No. 92-472 (Oct. 22, 1992); La. R.S. 9:1101.

3

The Preserve Commission is a state created agency,
or “political subdivision,” that is charged with all
regulation, enforcement, and adjudication pertaining to
Black Lake Complex. The Preserve Commission has the
explicit right, power, and authority to sue and be sued
as a subdivision of the State.

Further, petitioner also makes rules and regulations
to administer the preserve, regulates and controls the
taking of fish and game from the preserve, establishes
closed seasons, fixes fish and game limits, employs
wardens, builds roads, provides camps and boats, fixes
fees for hunting and fishing, as well as State licenses,
regulates the building and location of duck blinds, issues
licenses and permits, enforces prohibitions contained
in its rules and regulations, leases to commercial fishing
organizations, employs all necessary labor, establishes
fish hatcheries, and does all things necessary to conserve
and propagate fish and game in the preserve. The
Preserve Commission has the explicit power and
authority to “buy, lease, or sell properties necessary to
the establishment and maintenance or improvement of
the said Preserve.” In short, the Preserve Commission
has the property rights generally associated with
ownership.

Respondent, through the United States Corps of
Engineers (“Corps”), erected five locks and dams along
Red River to increase its depth and facilitate navigation.
Between Lock No. 3 and Lock No. 4 is the navigation
pool in question, Pool 3, to which Black/Clear Lake is
connected by the tributary. Pool 3 was originally
designed to have a water level of 87 MSL, the maximum

4

level determined by the Corps’ New Orleans District to
avoid ground water damage and associated claims for
damages.

However, the level of Pool 3 was eventually raised
to 95 MSL. Although property and property rights along
the river were acquired by or on behalf of the Corps, no
rights were acquired related to petitioner’s interest in
the area. Damage to Black Lake Complex caused by the
artificially maintained level of the river occurred after
the event of complete impoundment of Pool 3.

In July of 1995, the Corps’ Vicksburg District
Project Review Board reviewed and endorsed the Final
Project Management Plan, which outlined “remaining
project requirements” as of January 1995. The Plan
contained the following provision:

(7) aa. Pool 3 Lakes

Three State-owned lakes adjacent to Pool 3,
Nantachie, Clear-Black, and Saline, will be
impacted to varying degrees by the
impoundment of the 95 foot navigation pool
above Lock and Dam No. 3. The most
significant impact to the lakes is associated
with the ability to draw the lakes down by
gravity flow for aquatic weed control and
fisheries management. However, other
aspects such as structural stability of the lake
dams and project induced flooding have also
been investigated.

5

Subsequently, additional detailed design has
been initiated and this design effort and
construction have been added to the project
scope, cost, and schedule. Also, added as a
remaining requirement was a five year lake
monitoring study which was part of the
recommended plan in the approved DM 44E.
This study monitors water quality and
fisheries to determine the effects of operation
of the navigation pool. The study has been
initiated and is scheduled to be completed in
1998.

After 1995, the loss and damages which eventually
gave rise to this litigation as a result of the raising of
the level of Pool 3 to 95 MSL gradually began to occur.
In late 1996, the Preserve Commission requested the
Red River Water Way Commission to obtain assistance
from the Corps in a proposed draw down of Black/Clear
Lake based on concrete data that the lake complex was
having an adverse impact from the project.

The Corps refused to cooperate, despite having
maintained in the past that such data would be heeded
and despite provisions of its own Project Management
Plan. The Corps denied the Preserve Commission’s
request because navigation would allegedly be impeded
by a draw down.

By early 1997, petitioner began encountering a
severe hydrilla infestation of Black Lake Complex,
making some parts of the preserve all but useless for
recreational purposes. Now, more than ten years later,
the condemnation of Black Lake Complex has only
increased with more infestation.

6

Historically, the petitioner had been able to control
fish populations and aquatic vegetation by drawing down
the lake complex through the tributary that connects
the lakes to Red River. However, petitioner was unable
to draw down the lake for the first time 1997, because
the United States Corps of Engineers (“Corps”) had
recently completed a project to raise the Mean Sea Level
(MSL) of the Red River eight feet through a series of
locks and dams that created navigational pools. Raising
the level of the Red River had a domino effect that
eventually resulted in the permanent taking of the lake
complex. What resulted was a gradual deterioration of
the preserve, as follows: impoundment of the
navigational pool was the governmental act, severe
hydrilla infestation was the direct but delayed result,
and gradual loss of use of the property was the damage
suffered by petitioner.

The nature of the consequential damage of the
increased pool level is best described by the Corps in a
letter dated December 20, 1999, addressed to the
Executive Director of the Red River Waterway
Commission in which the Corps acknowledges that they
received complaints in 1996 from landowners concerned
about the effects of the project to improve navigation
of Red River. The Chief of the Corps Real Estate
Division stated, “We initially attributed this to the fact
that the pool had recently been impounded (Feb 1995)
and the extended high water mark that occurred during
mid 1995 and early 1996. We then entered a drier period
with no complaints from landowners in Pool 5 concerning
project impacts.” The Chief went on to explain that it
was not until early 1998 that they again started receiving
information that the new pool level was adversely

7

affecting land in the vicinity of the pool, which motivated
the Corps to start an investigation into the post project
impacts. The Corps concluded that lands above the
ordinary high water elevation were being impacted for
which owners were not compensated. The letter
referenced maps depicting “new inundated areas” and
suggested that “there is a possibility that additional
affected areas could be identified in the future.”
Identical problems and complaints were associated with
Pool 3.

The loss of the ability to draw down the lake through
the tributary to the level of the ordinary high water mark
of the Red was not the only problem for petitioner
caused by the actions of the government. The elevation
of the navigational pool significantly increased the
tailwater condition of the tributary and Black Lake
Complex, thereby reducing flood control of the lake.
The higher tailwater in the lakes’ tributary caused by a
higher mean sea level of Pool 3 disabled the discharge
capacity of Black/Clear Lake through the spillway.

The increased level of the water table around
Pool 3 is evidenced by the geological investigation of
the vicinity performed by Geotechnical Testing
Laboratory in October of 1996 at the request of the
Red River Waterway Commission. The report generated
by the investigation of the troublesome ground water
and subsurface conditions demonstrated a relatively
high water condition around Pool 3 attributable to the

8

level of the navigational pool of Red River. The
investigators found that

“the subsurface water regime is subject to
change with variations in climatic conditions
and possibly flow levels within adjacent
waterway. It is not possible to predict
future groundwater fluctuations based upon
single, short-term observations. Long-term
monitoring of groundwater conditions with
respect to river flow levels and precipitation
rates will be required to evaluate correlations
between the various influences.”

The problem with an increased water table was and
is compounded by the lost ability to draw down the lake
through Allen Dam and the lakes’ tributary. Additionally,
petitioner has experienced a drastic increase of land
flooding from the Lake as a result of the raising of the
water level of Pool 3. But most importantly, the
continuous high water level of Black/Clear Lake has
resulted in an ongoing and increasingly severe problem
with aquatic growth, namely hydrilla and coontail, which
has rendered the northern part of the lake virtually
useless. A large portion of the lake is not even accessible
by boat. Managing fish populations has been severely
impaired, and the situation continues to deteriorate
exponentially. The last scheduled draw down of Black
Lake occurred in the Fall of 1994, before the completion
of the project to raise the elevation of navigational pool
to 95 MSL. That draw down was successful in keeping
the Black Lake Complex functional, but that was more
than fourteen years ago.

9

On January 8, 1997, the Preserve Commission called
a special meeting and passed a resolution to permit
pursuing litigation against the Red River Waterway
Commission and the Corps. The meeting was
precipitated by the aforementioned denial of the
Preserve Commission’s written request for the Corps
to assist in a proposed draw down of Black/Clear Lake.
As previously stated, the Corps denied responsibility
for the Preserve Commission’s loss, the Corps rejected
the Preserve Commission’s request based on the
contention that navigation would be impeded by a draw
down.

For the last decade, the Preserve Commission has
consistently pursued compensation from the federal
government for the loss of use of land and water, and
the taking and destruction of petitioner’s property, as
a result of the raising of the water level of Pool 3 from
87 MSL to 95 MSL and the artificial maintenance of the
river at the higher level. Previously, petitioner alleged
damages in the estimated amount of 26 million dollars
based on an appraisal by the Corps assessing the cost
to restore the subject property and use of the property
known as Black Lake Complex. However, with the
passage of time, that estimation becomes less and less
realistic as an adequate amount to address the taking
suffered by petitioner.

In March of 2004, respondent filed a motion for
judgment on the pleadings on several grounds, only one
of which the Court of Federal Claims held was grounds
for dismissal: suit was time-barred under 28 U.S.C.A.
§ 2501. Petitioner appealed to the Federal Circuit Court
of Appeal, which held that the taking did not occur as

10

soon as Pool 3 was elevated to 95 MSL, therefore, the
gradual process instigated by respondent’s activity
resulted in a permanent taking less than six years before
commencement of petitioner’s case.

On remand, the lower court subsequently granted
the government’s motion on grounds of navigational
servitude. The Preserve Commission appealed because
based on the facts in evidence and applicable law, it defies
legal precedence for the lower court to have found that
the federal navigational servitude extends from
Red River to Black Lake Complex, where the gradual
taking occurred that forms the basis of the inverse
condemnation, or taking, of property rights to use, enjoy,
and maintain the fish and game preserve. The lower
court was affirmed by the court of appeal. Hence, the
Preserve Commission applies to this Court for a writ of
certiorari for redress.

REASONS FOR GRANTING THE PETITION

Erosion occurring above the ordinary high water
mark of the Red River would have resulted in a
compensable taking of property under the Fifth
Amendment, regardless of the navigational servitude.
Owen v. U.S., 851 F.2d 1404 (C.A.Fed.,1988), Banks v.
U.S., 2003 WL 18410 (C.A.Fed. 2003). Therefore, it
seems axiomatic that the subject taking of the Black
Lake Complex and the condemnation of most if not all
of the use of the fish preserve, as a result of the raising
of Pool 3, would also be compensable. The interest at
issue relates to the property itself, which is slowly being
taken as a result of an authorized government act.

11

The taking did not occur below the ordinary high
water mark of the Red River. The damage suffered in
the Black Lake Complex by the Preserve Commission
is tantamount to the damage suffered in Owen v. U.S.,
851 F.2d 1404 (C.A.Fed.,1988), Boling v. U.S., 220 F3d
1365 (C.A.Fed. 2000), Banks v. U.S., 2003 WL 18410
(C.A.Fed. 2003), United States v. Kansas City Life Ins.
Co. 339 U.S. 799 (1950), and Kaiser Aetna v. U. S., 444
U.S. 164 (1979).

If a governmental project imposes permanent
consequences on private property that are the direct,
natural, or probable result of an authorized activity and
are inevitably recurrent, then a Fifth Amendment
taking has occurred. Tri-State Materials Corp. v. U.S.,
550 F:2d 1 (Cl.Ct. 1977), Boling v. U.S., 220 F.3d 1365
(C.A.Fed. 2000).

Petitioner has and does now contend that the
continuing process of physical events by which
respondent permitted the taking of petitioner’s lawful
property interest in the fish and game preserve was
grounds for allowing petitioner to file suit once the
nature and extent of the taking and its effect became
clear and stabilized. The Preserve Commission claim
involves the taking of the property comprising Black
Lake Complex, which is above the ordinary high water
mark of the Red River. The evidence supports the
Preserve Commission’s claim, regardless of the
government’s attempt to redefine the real issue (i.e. a
gradual taking of the iakes and preserve) into
something that, conveniently, has no property right
attached to it.

12

In the case at bar the taking claim is for loss of use
and enjoyment of the lakes, property rights that were
granted to the Preserve Commission under Louisiana
state law. Petitioner’s loss, which is a loss of property
rights much like the right to exclude others in Kaiser
Aetna v. U. S., 444 U.S. 164 (1979), is traceable to the
government’s project to elevate Red River to an
artificial level. These facts constitute a taking by a
gradual physical process for which compensation should
be provided in order for the Preserve Commission to
restore the fish and game preserve and prevent the
complete condemnation of the lake complex in the future.
These facts do not, however, indicate a taking of
property below the ordinary high water mark of the river
such that the navigational servitude would preclude a
claim for compensation.

Furthermore, even if the navigational servitude did
apply to the facts in this case, there is no material basis
for the disparate treatment of navigation as opposed to
other public uses which trigger the Takings Clause of
the Fifth Amendment and require compensation.

13

I. REVIEW IS WARRANTED TO ADDRESS THE
MISAPPLICATION OF THE NAVIGATIONAL
SERVITUDE TO THE FACTS OF THIS CASE

A. The Navigational Servitude Does not Extend
to the Northwest Louisiana Fish and Game
Preserve

Invocation of the federal navigational servitude
cannot be a pretext to avoid an otherwise compensable
taking. Palm Beach Isles Assoc. v. U.S., 2003 WL
22937326 Fed.Cl.,2003. The navigational servitude does
not create a blanket exception to the Takings Clause of
the Fifth Amendment. Kaiser Aetna v. U. S., 444 U.S.
164 (1979), Alameda Gateway, Ltd. v. U.S., 45 Fed.Cl.
757 (Fed.Cl.,1999). Unlike the power to regulate
navigable waters under the commerce clause, the
navigational servitude is not coextensive with Congress’
regulatory authority. Boone v. U.S., 944 F.2d 1489
(C.A.9.Haw.,1991).

Furthermore, the servitude only encompasses the
exercise of federal power with respect to the stream
itself and lands beneath its ordinary high-water
mark. U.S. v. Virginia Elec. & Power Co., 81 S.Ct. 784
(U.S.Va.,1961), emphasis provided. However, the
government must compensate for any taking of property
above the ordinary high water mark. In other words,

“Those owning land within the bed of a
navigable stream are subject to the
navigational servitude and miay not claim
compensation when the Government takes
the land in aiding the navigability of the

14

stream, while those beyond the ordinary high
water mark are not subject to navigational
servitude and may recover.”

Tri-State Materials Corp. v. U.S., 550 F.2d 1 (C1.Ct.
1977).

The specific basis for the Preserve Commission’s
claim in the case at bar is that the Corps inversely
condemned petitioner’s lake and surrounding land when
it undertook improvements of the Red River in order
to facilitate commercial use of the river, and failed to
pay just compensation for the taking. The Preserve
Commission’s property is distinctly separate from Red
River; in between the lake complex and the river are a
tributary and a state dam since 1931.

As the Federal Circuit Court of Appeal has
explained, “there must be horizontal limits to the extent
of a riverbed, or else imposition of the navigational
servitude up to the ordinary high-water mark
theoretically could extend indefinitely.” Owen v. U.S.,
851 F.2d at 1410 (1990). “The navigational servitude only
relieves the government of the obligation to pay
compensation for acts interfering with the ownership of
riparian, littoral, or submerged lands which, if not for
the fact that a waterway is involved, would require
compensation under the fifth amendment.” Boone v.
U.S., 944 F.2d 1489, 1494 (C.A.9,1991).

Because the taking of the land and property interest
in question in the case at bar is outside and/or above
the ordinary high water mark of the Red, it is outside

15

the scope of the navigational servitude, which the Corps
should not be able to rely on as a defense to petitioner’s
claim.

In Owen v. U.S., 851 F.2d 1404 (C.A.Fed.,1988), the
Federal Circuit Court held that

“liln appropriate circumstances,
compensation can be owed for consequential
effects of construction activities to further
navigation, undertaken solely within the
boundaries of a river bed subject to the
Government’s navigational servitude; it is not
the location of the cause of the damage that
is relevant, but the location and permanence
of the effect of the government action causing
the damage that is the proper focus of the
taking analysis.”

Emphasis provided.

In that case, the Corps of Engineers argued that it
was within its authority as owner of the dominant
navigational servitude to intentionally redirect the
course of the Tombigbee River to undercut an adjoining
landowner’s property, resulting in the landowner’s farm
collapsing into the river due to lack of lateral support.
The court of appeals held that the navigational
servitude did not extend to existing fast lands. Owen at
1043. Because the property alleged as lost due to
government-caused erosion was outside the bed of the
river, it-was unaffected by the navigational servitude.

16

Therefore, it is well established that even if the
navigational improvements were within the proper
boundaries, a taking occurs when the damaged property
is located outside the water’s ordinary high-water mark,
and thus renders the government liable for the payment
of just compensation. Kingsport Horizontal Property
Regime v. U.S., 46 Fed.Cl. (Fed.Cl.,2000).

This was the rationale of United States v. Kansas
City Life Ins. Co. 339 U.S. 799 (1950), where the U.S.
Supreme Court held that when a navigable stream was
raised by the government to its ordinary high-water
mark and maintained continuously at that level in the
interest of navigation, the government was liable
“for the effects of that change [in the water level] upon
private property beyond the bed of the stream.” 339 U.S.,
at 800, 801.

The Court in Kansas City Life allowed recovery for
damages to land located on a non-navigable tributary
of the Mississippi River resulting from the artificial
maintenance of the Mississippi at its high-water level.
The land was located one and one-half miles from the
river on the tributary. The raised water level in the river
also raised the local water table which blocked the
drainage of the affected parcel’s surface waters, thereby
causing the destruction of the land’s agricultural value.
Since the land, not in the bed of a navigable stream,
was not burdened with the navigational servitude, the
Court held that a taking had occurred. /d. at 802-03.

Kansas City Life thus provides a clear application
of the Supreme Court’s view of the horizontal and
vertical limits on the scope of a stream bed, and of the

17

corresponding scope of the navigational servitude. It is
also particularly applicable to the case at bar because
the government here did not establish, nor did the lower
court find that the tributary from Black Lake Complex
was navigable in FACT, as required by law. U.S. v. Cress,
243 U.S. 316 (U.S. 1917).

“To qualify as a navigable waterway of the
United States subject to federal jurisdiction
under the Commerce Clause, the waterway
must form, either by itself or by united with
other waters, a continued highway over which
commerce may be carried on with other states
or foreign countries in the customary modes
in which commerce is conducted by water.”

Lykes Bros., Inc., v. U.S. Army Corps of Engineers,
821 FSupp. 1457, 1464 (M.D.F la. 1993). The navigational
servitude does not cover non-navigable tributaries.
United States v. Cress, 243 U.S. 316, 326-27, 37 S.Ct.
380, 384, 61 L.Ed. 746 (1917), Goose Creek Hunting
Club, Inc. v. United States, 518 F.2d 579, 582, 207 Ct.Cl.
323 (1975).

Trade or commerce is not conducted on Sabine
Bayou, the tributary in question, at one end of which
the Allen Dam was built shortly after the fish and game
preserve was lawfully established by the State in 1926.
However, even if the tributary was navigable, the
navigational servitude would not then extend past the
spillway into the Black Lake Complex and preserve
lands.

18

In Goose Creek Hunting Club, Inc. v. United States,
518 F.2d 579, 582, 207 Ct.Cl. 323 (1975), the landowner
owned property adjacent to a stream, which flowed into
a navigable river, which, in turn, flowed into another
navigable river on which the government had
constructed a dam. Prior to construction of the dam,
the property adjoining the stream, or creek, was used
by the landowner for hunting and grazing cattle.
In addition, the trees growing along the banks of the
creek had commercial value. After completion of the
dam, however, the property bordering the creek flooded.
In determining that the landowner was entitled to
compensation for the permanent flowage easement, the
court held that the property adjoining Goose Creek was
not subject to the government’s navigational servitude
covering the beds of the two navigable rivers.into which
it flowed, because such property was situated beyond
the beds of those rivers. Goose Creek, 518 F.2d at 583.
Alternatively, the court held that “even if Goose Creek
were considered to be a navigable stream, the landowner
nonetheless would be entitled to compensation, since
the strips of land adjacent to the creek were above the
ordinary high-water mark of Goose Creek under any of
the definitions stated above.” Jd. at 584.

In the case at bar, Black Lake Complex is subject to
the navigation or navigational project of the Red River,
and the lake and contiguous land in the Preserve
Commission’s possession are above the ordinary high
water mark of Pool 3. Therefore, the U.S. should be
subject to liability for damages caused to the property
as a result of the elevation of Pool 3 to 95 MSL.

19

The two lower courts’ reliance on U.S. v. Willow
River Power Co., 324 U.S. 499 (U.S. 1945), is misplaced.
In that case, suit by the Willow River Power Company
was brought against the United States to recover
compensation for impaired efficiency of the company’s
hydroelectric plant caused by the raising the water level
of the St. Croix River. The issue in that case was whether
a taking had occurred, which the court concluded in the
negative: “Our question is whether the damage is the
result of a ‘taking’ of private property, for which just
compensation is required by the Fifth Amendment.”
Willow Creek at *500. The plaintiff sought an award
solely for the loss of power; there was no allegation or
finding that any other injury was done to property or
that the claimant otherwise was deprived of any use of
its property, or the impairment of the value of land.
Id. at 501. Under these circumstances, the court in
Willow River determine that the plaintiff’s allegation
did not rise to a taking because it involved an “economic
interest” that did not constitute a property right:
“not all economic interests are ‘property rights’; only
those economic advantages are ‘rights’ which have the
law back of them, and only when they are so recognized
may courts compel others to forbear from interfering
with them or to compensate for their invasion.”
Td. at 502.

The Willow Creek Court further stated,

“We cannot... call such a claim as we have
here a ‘property right’; whether it is a
property right is really the question to be
answered. Such economic uses are rights only
when they are legally protected interests.

20

Whether they are such interests may depend
on the claimnant’s rights in the land to which
he claims the water rights to be appurtenant
or incidental; on the navigable or non-
navigable nature of the waters from which he
advantages; on the substance of the
enjoyment thereof for which he claims legal
protection; on the legal relations of the
adversary claimed to be under a duty to

observe or compensate his interests; and on
whether the conflict is with another private
riparian interest or with a public interest in
navigation. The claimant’s assertion that its
interest in a power head amounts to a
‘property right’ is made under circumstances
not present in any case before considered by
this Court.”

Id. at 503.

In the case at bar, the taking claim is based on injury
to the use of the lakes and preserve, for which the
Preserve Commission seeks compensation. The question
is the impairment of and physical damage to the
property itself, not an economic advantage disconnected
to any property right. The Preserve Commission does
not have nor has alleged any economic value for use of
the Red, as in Willow Creek. Petitioner has always
sought compensation for loss of use and enjoyment, and
other property rights associated with possession of the
lakes and, necessarily, the purpose for which the fish
and game preserve was established so long ago.

21

The case at bar is more analogous to Kaiser Aetna
v. U.S., 444 U.S. 164 (U.S.,1979), in which the owner of
what was once a private pond, separated from concededly
navigable water by a barrier beach and used for aquatic
agriculture, invested substantial amounts of money in
making improvements. The government contended that
as a result of the pond’s connection to the navigable
water, the private property became subject to the
federal navigational servitude. The United States
Supreme Court did not agree. The Court, distinguishing
Willow Creek, stated

“We think, however, that when the
Government makes the naked assertion it
does here, that assertion collides with not
merely an ‘economic advantage’ but an
‘economic advantage’ that has the law back
of it to such an extent that courts may ‘compel
others to forbear from interfering with [it] or
to compensate for [its] invasion.’””

Kaiser Aetna at 178.

Accordingly, if a plaintiff’s interest involves a legally
enforceable right, that interest will be considered
“property” within the context of the takings clause of
the Fifth Amendment. State of Illinois v. U.S., 15 Cl.Ct.
399, (1988). Stated slightly differently, property within
the Fifth Amendment denotes the group of rights
inhering in a party’s relation to the physical thing, as
the right to possess and use it. United States v. General
Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 89 L.Ed.
311 (1945).

22

The Preserve Commission’s property and legally
enforceable interests vest in petitioner the right to bring
a taking claim against the government in order to
compel compensation for the interference with said
interests. Therefore, in the context of the case at bar,
although the Preserve Commission does not have title
to the property at issue, petitioner does have property
interests protected by the takings clause of the
Fifth Amendment. In fact, there is no right or interest
with regard to the lakes and land comprising the fish
and game preserve that the Preserve Commission does
not have under Louisiana law because it has the legal
duty of the Preserve Commission to protect the rights
inherent in possession of the preserve.

It is the taking of many of those property rights that
the Preserve Commission is undertaking its obligation
to seek compensation from the government. The taking
of the property rights at issue occurred above the
ordinary high water mark of the Red River. Therefore,
the Federal Claims Court and the Federal Circuit Court
rulings that the navigational servitude precludes the
Preserve Commission’s claim are not supported by the
evidence in the record or the relevant law.

23

II. REVIEW IS WARRANTED TO RESOLVE THE
CONFLICT IN TREATMENT BETWEEN
NAVIGATION AND OTHER PUBLIC USES, THE
TAKING OF WHICH ARE COMPENSABLE
UNDER THE UNITED STATES CONSTITUTION

In an additional view, Federal Circuit Judge Randall
R. Rader raises an important question regarding a
conflict between the federal courts’ treatment of certain
public purposes which trigger the Fifth Amendment
Takings Clause. The result of the conflict is that takings
for public use generally require just compensation, while
one purpose, i.e. navigation, does not entitle claimants
to compensation as a result of a historic privilege that
constitutes a dominant servitude.

While the implications of this question are broad and
appear to reach as far back as the birth of this nation as
we know it, the factual and legal issues in the case at
bar are also implicated by the resulting conflict in the
way the Constitution has been applied to seemingly
analogous takings cases.

The content of the additional view reads as follows:
RADER, Circuit Judge, additional view.

While I endorse the reasoning and results of
the panel, I write separately to highlight a
distressing ambiguity in this court’s binding
precedent. Neither this court nor the
Supreme Court has proffered any material
basis justifying a different treatment of
navigation versus other Fifth Amendment

24

public purposes. Why should navigation be
received any differently than highway
transportation, public safety, or
environmental protection? In light of the
special protections afforded to navigation, it
seems only prudent that such a material basis
be provided. (Appendix A, 15a.)

Under the Fifth Amendment of the United States
Constitution, “No person shall be. . . deprived of life,
liberty, or property, without due process of law; nor shall
private property be taken for public use, without just
compensation.” U.S.C.A. Const.Amend. 5.

Courts have interpreted the Fifth Amendment to
mean that where a government requires land owners to
suffer permanent invasion of their property, however
minor, the government must provide just compensation.
Lingle v. Chevron U.S.A. Inc., 125 8.Ct. 2074, 544 U.S.
528, 161 L.Ed.2d 876 (2005).

The constitutional requirement of just compensation
upon the taking of private property for public use derives
as much content from basic equitable principles of
fairness as it does from technical concepts of property
law. U.S. v. Fuller, 93 S.Ct. 801, 409 U.S. 488, 35 L.Ed.2d
16 (1973). In other words, it is a question of due process
of law. Village of Norwood v. Baker, 19 S.Ct. 187, 172
U.S. 269, 48 L.Ed. 443 (1898).

The Takings Clause does not allow an owner to
prohibit the government from taking private property
altogether; rather, the language of the clause prohibits
the government from forcing some people alone to bear

25

public burdens which, in all fairness and justice, should
be borne by the public as a whole. Maritrans Inc. v.
U.S., 342 F.8d 1344 (C.A.Fed.2008). Therefore, when a
public need arises that requires the acquisition of
property, individuals may be required to relinquish
ownership of property so long as they are given
that just compensation which this clause requires.
U.S. ex rel. Tenn. Valley Authority v. Welch, 66 S.Ct.
715, 327 U.S. 546, 90 L.Ed. 848 (1946).

For example, the government may not take or
impose an easement without just compensation under
the Takings Clause. Ridge Line, Inc. v. U.S., 346 F.3d
1346 (C.A.Fed.,2003). Nor may the government condemn
easements under the Fifth Amendment without
compersation. First Unitarian Church of Salt Lake City
v. Salt Lake City Corp., 308 F.3d 1114 (C.A.10,2002).

That being said, there is one exception to this
general rule that the federal government plays like a
wild card whenever navigation is involved. So the issue
at hand is this: why does a jurisprudential privilege with
no material basis trump a due process right guaranteed
by the Fifth Amendment of the U.S. Constitution?

In U.S. v. 80.54 Acres of Land, More or Less,
Situated in Greene County, Com. of Pa., 90 F.3d 790
(C.A.3,1996), the court explained that although the Fifth
Amendment requires payment of just compensation for
private property taken for public use, the government
is not required to pay for economic losses resulting from
the exercise of its “navigational servitude,” which is its
power to regulate the use of navigable waterways,
because navigable waterways have always been under

26

the exclusive control of the federal government under
the Commerce Clause.

Therefore, the courts have held that the basis of
the federal government’s “dominant servitude” over the
navigable waters of the United States arises from the
Commerce Clause of the United States Constitution.
Parm v. Shumate, 518 F3d 185 (C.A.5.La.,2007), Banks
v. U.S., 71 Fed.Cl. 501 (Fed.Cl.,2006).

The Commerce Clause of the United States
Constitution broadly refers to the regulation of
commerce, and provides that Congress shall have power
“To regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes.”
U.S.C.A. Const. Art. I § 8, cl. 3.

The channels of interstate commerce which
Congress may regulate under its commerce clause
power are the routes through which commerce travels,
and the term refers to navigable rivers, lakes, and
canals, the interstate railroad track system, the
interstate highway system, interstate telephone and
telegraph line, air traffic routes, television and radio
broadcast frequencies, and satellite communication
frequencies on, over, and through which flow the goods,
commodities, and information which constitute
commerce between places in different states. U.S. .
Shahani-Jahromi, 286 F.Supp.2d 723 (E.D.Va.,2003),
U.S. v. Ballinger, 395 F.3d 1218 (C.A.11.Ga.,2005).

On the surface, it does sound logical that a
navigational servitude is the right of the public to use
navigable waterways as continuous highways for the

27

purpose of navigation in interstate commerce as in cases
like Dardar v. Lafourche Realty Co., Inc., 985 F.2d 824
(C.A.5,1993). However, to make such a statement raises
the question of why other means of interstate commerce
within the regulatory power of Congress are not also
granted special protection, privilege, or dominance.

Highways, for example are within the power of
Congress to regulate under the Commerce Clause.
Additionally, highway transportation is also a public use
covered by the Fifth Amendment. Yet the acquisition of
private property for the improvement of a highway by
the government is a Fifth Amendment taking that
requires just compensation in order to comply with due
process of law. Federal Real Estate & Storage Co. v. U.S.,
79 Ct.Cl. 667 (Ct.Cl.,19383), Fruin-Colnon Corp. v. Vogt,
500 FSupp. 606 (S.D.I11.,1980).

In Farmland Preservation Ass’n v. Goldschmidt,
611 F2d 233 (C.A.8,1979), a federal interstate highway
project through a rural area between Cedar Rapids and
Waterloo bisected farm lands adapted to various
agricultural uses. As a result, the contemplated highway
would force the affected farmers into unfavorable
diagonal operations. The court held that “[t]he
landowners are entitled, of course, to just compensation
for their lands that are taken in connection with the
project” pursuant to the Fifth Amendment.
Goldschmidt at 237. “And where, as here, partial takings
are involved, the landowner is entitled to be
compensated not only for the value of his land that is
actually taken, but also for the diminution of the value
of what is left to him after the taking.” Jd. See also, U.S.
v. Gossler, 60 F.Supp. 971 (D.C.Or.1945), where the

28

government condemned a parcel of land servient to a
right of way connecting a gravel bar with a highway, the
owner of the right to take gravel from bar had a
compensable property interest in the right of way other
than the value of the way itself, and the government
was not free from liability to such owner for the taking
of their interest in the way.

In U.S. v. Certain Parcels of Land in Kent County,
Mich., 252 F:'Supp. 319 (D.C.Mich. 1966), a condemnation
proceeding in connection with the construction,
reconstruction, and improvement of the Michigan
Highway Project I-96-1(10)66, the court denied the
government’s motion for summary judgment. The court
held that the issue as to whether the interference with
the owner’s property, a portion of which was condemned
in connection with construction, reconstruction and
improvement of a highway project, was so substantial
as to be a taking, and thus compensable under the Fifth
Amendment precluded summary judgment. “What is at
issue here is a claim that the interference with
defendant’s property is so great as to render that
property ineffective and useless (in effect, destroyed)
for [its] purposes[.]” Certain Parcels of Land in Kent
County, Mich. at 324, also citing United States v. General
Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311
(1945)

“The courts have held that the deprivation of
the former owner rather than the accretion
of a right or interest to the sovereign
constitutes the taking. Governmental action
short of acquisition of title or occupancy has

29

been held, if its effects are so complete as to
deprive the owner of all or most of his interest
in the subject matter, to amount to a taking.”

Even a municipality, a county, a state or another
public entity having responsibility for the property taken
has sufficient property interest to maintain action and
is entitled to compensation for the taking. State of Wash.
v. U.S., 214 F.2d 33 (C.A.9, 1954), Sarpy County, Neb. v.
U. S., 386 F.2d 453, 181 Ct.Cl. 666 (Ct.C1.1967).

Therefore, an unacceptable conflict has arisen
between the way the courts handle land owners’ rights
in the cases discussed above involving highways as a
public use, and the way plaintiffs such as the Preserve
Commission are treated. Review is warranted to resolve
this conflict, since the navigational servitude is a
jurisprudentially created privilege, while just
compensation is a constitutional right to due process of
law.

30

CONCLUSION

Based on the foregoing, Petitioner respectfully
requests the Court to grant the Petition for a Writ of
Certiorari.

Respectfully submitted,

WILLIAM P CREws, JR.
WILLIAM P Crews, JR., L.L.C.
Post Office Box 1036
Natchitoches, Louisiana 71458
(318) 356-8001

Counsel for Petitioner

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1181%3A1. Public record. Not legal advice.