Creppel v. United States

33 Fed. Cl. 590, 1995 U.S. Claims LEXIS 125, 1995 WL 384988
CourtUnited States Court of Federal Claims
DecidedJune 28, 1995
DocketNos. 91-1262L, 91-1505L, 91-1508L and 91-1509L
StatusPublished
Cited by17 cases

This text of 33 Fed. Cl. 590 (Creppel v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Creppel v. United States, 33 Fed. Cl. 590, 1995 U.S. Claims LEXIS 125, 1995 WL 384988 (uscfc 1995).

Opinion

OPINION

MILLER, Judge.

These takings cases are before the court on defendant’s motion to dismiss the first joint consolidated and amended complaint and on defendant’s motion for partial sum[592]*592mary judgment. The two issues for resolution are 1) whether plaintiffs may amend their original consolidated complaints to add 43 new plaintiffs not named in the original complaints; and 2) whether certain named plaintiffs in the original complaints fail to state a claim upon which relief can be granted because they did not own interests in the subject properties on the date of the alleged taking. Argument is deemed unnecessary.

FACTS

The following facts are undisputed, unless otherwise noted. Plaintiffs own marshland in Jefferson Parish, Louisiana (“Jefferson Parish”). Plaintiffs’ properties lie within a 3,200-acre region known as the Bayou Aux Carpes Site (the “site”). The site includes several contiguous tracts of land known as the Marrero property, the Harvey property, the Crowell property, the Dietze property, and the Peach Orchard property.1

The site is the location of a U.S. Army Corps of Engineers (the “Corps”) flood control project. This project, known as the Harvey Canal-Barataria Levee Project, involved the closing of two navigable bayous and the building of levees and a pumping station. The project, as originally conceived, also involved certain land reclamation features. Prior to completion of the project, Congress passed the Clean Water Act of 1977, Pub.L. No. 95-217, 91 Stat. 1566 (1977) (codified as amended at 33 U.S.C. § 1344 (1988)) (the “CWA”). Section 404 of the CWA prohibits the discharge of dredged or fill material into navigable waterways without a permit. 33 U.S.C. § 1344 (1988 & Supp. V 1993). On July 10, 1974, activity at the Bayou Aux Carpes was halted until the Corps could determine whether the project complied with section 404 of the CWA.

The Corps ultimately decided to proceed with the project as planned. The United States Environmental Protection Agency (“EPA”), however, objected to the closing of the bayous because it would result in the destruction of wetlands protected by the CWA On November 16, 1976, Brigadier General Drake Wilson of the Corps issued an order modifying the project (the “Wilson Order”). The Wilson Order, which was endorsed by EPA, halted construction of the pumping station and required the use of flood gates in place of dikes. The Wilson Order eliminated the land reclamation features of the original project. Local landowners filed suit. On October 31, 1977, the landowners obtained a preliminary injunction prohibiting the Jefferson Parish, which had sponsored the project, from abandoning the land reclamation project. This injunction became permanent. Creppel v. Parish of Jefferson, 352 So.2d 297 (La.Ct.App. 4th Cir. 1977), aff'd, 384 So.2d 853 (La.Ct.App. 4th Cir.), writ denied, 392 So.2d 689 (La.1980). The landowners also obtained a court order permanently enjoining the Parish from abandoning the original project. Creppel v. Parish of Jefferson, No. 199-345 (24th Jud. Dist. Jefferson Parish, Jan. 12, 1979).

While the state action was pending, the same landowners brought suit in federal district court seeking to overturn the Wilson Order. On summary judgment the district court held that General Wilson had not abused his discretion in ordering the modified project. Creppel v. United States Army Corps of Eng’rs, 500 F.Supp. 1108, 1119 (E.D.La.1980), rev’d in part and aff'd in part, 670 F.2d 564 (5th Cir.1982). On appeal the Fifth Circuit agreed that General Wilson had not abused his discretion, but reversed and remanded to determine whether Jefferson Parish would provide assurances of the revised project’s completion. Creppel, 670 F.2d at 574-75. On remand the district court found that Jefferson Parish would not provide the necessary assurances and that the. revised project could not be completed. Creppel v. United States Army Corps of Eng’rs, No. 77-25, slip op. at 5 (E.D.La. Aug. 13, 1984). The district court therefore set aside the Wilson Order and ordered the original project to go forward. On December 14, 1984, the district court stayed this order pending an EPA decision to initiate C.W.A. § 404(c) proceedings.

On December 17, 1984, EPA commenced section 404(e) proceedings and on August 30, [593]*5931985, issued a Recommended Determination that EPA veto the project. On October 16, 1985, EPA issued a Final Determination permanently blocking completion of the original project. In May 1986 the landowners sought to overturn EPA’s decision. On June 29, 1988, the district court upheld EPA’s Final Determination ruling that EPA did not abuse its discretion. Creppel v. United States Army Corps of Eng’rs, No. 77-25, 1988 WL 70103 (E.D.La. June 29, 1988). The district court remanded the case to determine whether Jefferson Parish would grant assurances for the modified project. When Jefferson Parish failed to provide assurances the district court dismissed the landowners’ lawsuit. Creppel v. United States Army Corps of Eng’rs, No. 77-25 (E.D.La. Oct. 12, 1989).

On July 5, October 10, and October 11, 1991, the landowners filed four consolidated claims in the then United States Claims Court, alleging both temporary and permanent takings. The four claims concerned the Dietze, Crowell, Peach Orchard, and Marrero properties. Defendant moved for summary judgment, arguing that plaintiffs’ claims were barred by the statute of limitations. The court held that plaintiffs’ causes of action accrued when the Wilson Order issued on November 16, 1976. Creppel v. United States, 30 Fed.Cl. 323 (1994), and dismissed the complaint. On appeal the Federal Circuit reversed in part, holding that only plaintiffs’ temporary takings claims were time-barred. Creppel v. United States, 41 F.3d 627 (Fed.Cir.1994). The permanent takings claims accrued on October 16, 1985, the date of EPA’s Final Determination blocking completion of the original project and therefore were filed within the six-year limitations period.

On March 29, 1995, plaintiffs moved the court for leave to file Plaintiffs’ First Joint Consolidated and Amended Complaint (the “Amended Complaint”). Plaintiffs propose to include 43 additional plaintiffs not named in the original complaints. Of these 43 proposed new plaintiffs, 38 owned interests m land located within the Bayou Aux Carpes on October 16, 1985, the date of the alleged permanent taking. Of this latter group, 32 owned property interests in the Harvey tract; one owned property in the Crowell tract; three owned property in the Dietze tract; and two owned property in the Peach Orchard tract.2 Neither the Harvey tract nor any of its owners were the subject of the initial four consolidated complaints.

Five of the 43 proposed new plaintiffs acquired interests in property located within the Bayou Aux Carpes after the date of the alleged taking.3

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Bluebook (online)
33 Fed. Cl. 590, 1995 U.S. Claims LEXIS 125, 1995 WL 384988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/creppel-v-united-states-uscfc-1995.