Trial and appeals courts reject landowner argument that routine federal regulation of wetlands amounts to a seizure or invasion of his land, and that the government should compensate him under the Fifth Amendment
Status: Following a bench trial, the Court of Federal Claims dismissed all “takings” claims and ruled for the United States; the U.S. Court of Appeals for the Federal Circuit has affirmed the lower court’s ruling
Discussion & Analysis: In violation of the Clean Water Act, a landowner dumped fill material into a 30-acre wetlands site on his 134-acre property without obtaining the required permit. The government repeatedly ordered him to cease his illegal activities and submit a restoration plan for the wetlands, and ultimately brought an enforcement action. That litigation ended in a consent decree, under which plaintiff agreed to (and did) restore the damaged wetlands. But he then claimed that his restoration work had rendered much of the land unusable, and sued the government for “taking” his property without just compensation. Although plaintiff had historically used the land for farming, he argued that he should be paid based on a new, hypothetical use for the property: as the site for a large residential subdivision.
Following nearly a decade of litigation, including a trial and an appeal, the courts have consistently rejected each of plaintiff’s claims. The trial court determined that Clean Water Act regulation had diminished plaintiff’s property value by a mere 14 percent and that he had not suffered a “regulatory taking,” nor proven that complying with the environmental law was “functionally comparable to government appropriation or invasion” of the land. Nor did the court accept the argument that plaintiff’s own implementation of the consent decree—to which he had agreed, and about which he had never complained to any federal agency—resulted in a “physical taking” of his property by the government.
Brace is typical of many “takings” lawsuits filed by landowners against the federal and state governments to avoid responsibility under even routine environmental regulations. Win or lose, property-rights activists bringing these cases compel the government to expend enormous financial and staff resources simply to enforce basic environmental laws. Additionally, it remains unknown how this case (or a similar one) might fare before the Supreme Court as currently composed.
Key Opinion: Brace v. United States, 72 Fed. Cl. 337 (Fed. Cl. 2006), affirmed by Brace v. United States, No. 2007-5002, 2007 WL 2947319 (Fed. Cir. Oct. 10, 2007) (not reported) (per curiam).
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