Dufau v. United States

22 Cl. Ct. 156, 21 Envtl. L. Rep. (Envtl. Law Inst.) 20814, 32 ERC (BNA) 1524, 1990 U.S. Claims LEXIS 465, 1990 WL 192924
CourtUnited States Court of Claims
DecidedNovember 30, 1990
DocketNo. 553-89L
StatusPublished
Cited by22 cases

This text of 22 Cl. Ct. 156 (Dufau v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dufau v. United States, 22 Cl. Ct. 156, 21 Envtl. L. Rep. (Envtl. Law Inst.) 20814, 32 ERC (BNA) 1524, 1990 U.S. Claims LEXIS 465, 1990 WL 192924 (cc 1990).

Opinion

OPINION

LYDON, Senior Judge:

This fifth amendment regulatory taking case is before the court on defendant’s motion to dismiss plaintiffs’ complaint, or alternatively, for summary judgment, and plaintiffs’ opposition thereto. Plaintiffs allege their land has been taken as a result of unreasonable government actions in processing plaintiffs’ permit applications to fill wetlands for development and sale. Defendant asserts that, since plaintiffs received the permits they requested, which allowed them to develop their land, no taking has transpired. After careful consideration of the parties’ submissions, the parties having waived oral argument, the court grants defendant’s motion for summary judgment.

FACTS

Plaintiff landowners, Mr. and Mrs. Clement J. Dufau and others [sometimes referred to collectively as “Dufau”], claim that their real property has been taken by the federal government without just compensation, in violation of the fifth amendment to the Constitution.1 Plaintiffs own approximately 112 acres of land located about two miles northeast of the town of Laplace, Louisiana, in the parish of St. John the Baptist. Plaintiffs’ land is situated between Woodland Drive and Interstate 10, and is bisected by U.S. Highway 51. As owners or successors in interest, plaintiffs have maintained their ownership interests in and have been in continuous possession of the land at issue since at least 1968. Since 1974, the land has been the subject of plaintiffs’ continuing and ongoing plans for commercial and residential development.

In 1972, Congress amended the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq., to prohibit, inter alia, the discharge of dredged or fill materials into “navigable waters” (defined as “waters of the United States”) unless authorized by permit issued by the Army Corps of Engineers (Corps), pursuant to section 404 of the CWA. See 33 U.S.C. §§ 1344, 1311, 1362. Before 1975, this provision did not extend to “wetlands” such as plaintiffs’ land. However, [158]*158in 1975 the Corps issued interim final regulations redefining “waters of the United States” to include not only “navigable waters” but also tributaries of such waters, interstate waters and their tributaries, and nonnavigable intrastate waters whose use or misuse could affect interstate commerce. 40 Fed.Reg. 31320 (1975). The Corps also construed the Clean Water Act to cover all “freshwater wetlands” adjacent to other waters covered by the Act, defined as including areas “periodically inundated” and “normally characterized by the prevalence of vegetation that requires saturated conditions for such growth and reproduction.” 33 C.F.R. § 209.120(d)(2)(A) (1976). In 1977, the Corps eliminated the requirement of “periodic inundation” from the definition of “wetlands” and made other minor changes, as follows:

The term “wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal conditions do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.

33 C.F.R. § 323.2(c) (1978).

In 1982, the 1977 regulations were replaced by substantively identical regulations that were in force in May 1984 when the Corps issued plaintiffs a cease and desist order with regard to “[djeposition of dredged and/or fill material into a water of the United States.” See 33 C.F.R. § 323.2 (1985). These regulations, as construed by the Corps to cover freshwater wetlands such as plaintiffs’ land, have been upheld by the Supreme Court as within the Corps’ jurisdiction. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131, 106 S.Ct. 455, 461, 88 L.Ed.2d 419 (1985).2

In 1974, the New Orleans District of the Corps advised Dufau that no § 404 permit was needed to fill the area encompassed by plaintiffs’ land, based on regulations in force at the time. Dufau claims he received the same advice from the Corps indirectly in 1979. Interestingly, the District Corps has no record of any inquiry from Dufau regarding the Corps’ § 404 jurisdiction over Dufau’s land in 1974 or at any time prior to the May 1,1984 cease and desist order. However, the administrative record seems to support Dufau’s claim that he received such advice from the Corps in 1974. In 1974, the Corps also advised H. Hunter White, who owned land adjacent to plaintiffs’ land, that the Corps had no § 404 jurisdiction above high tide.3 Accordingly, in 1974, plaintiffs claim to have begun to invest significant amounts of time and money in formulating extensive plans for the development and future sale of their land, in reliance on the Corps’ assurance that no permit was needed to fill the land.4

On April 23, 1984, a Corps botanist, Dr. Mary Plumb-Mentjes and Bert Duplantis, a permit investigator, observed land clearing [159]*159and fill operations on plaintiffs’ land, which activities led the Corps to issue plaintiffs a cease and desist order on May 1, 1984.5 Plaintiffs’ activities and the cease and desist order are documented by a memorandum to file dated May 2,1984. Subsequent memoranda dated July 13, 1984 and July 18, 1984 document Dr. Plumb-Mentjes’ wetlands determinations with regard to plaintiffs’ land. Dr. Plumb-Mentjes found that, of approximately 120 acres of plaintiffs’ land, about 70 acres were wetlands and about 50 acres were nonwetlands.6

Plaintiffs do not challenge the Corps’ characterization of 70 acres of their land as wetlands. Rather, plaintiffs’ position is, in essence, that in 1984 when they began to clear and fill the 112 acres, they relied on the state of the law as it existed before 1975, at a time when the Corps did not construe the Clean Water Act to include plaintiffs’ land in the definition of “wetlands.” Plaintiffs complain that the government did not notify them when the law changed to include plaintiffs’ land in the definition of “wetlands.” However, the government has no duty generally to disclose changes in the law. See C & L Construction Co. v. United States, 6 Cl.Ct. 791, 799 (1984), aff'd, 790 F.2d 93 (Fed.Cir.1986). Plaintiffs are not entitled to rely on pre-1975 law in 1984 nor on any government assurances made in 1974. Rather, plaintiffs should have ascertained for themselves whether their development activities in 1984 comported with federal laws and regulations in effect in 1984. See C & L Construction, supra, 6 Cl.Ct. at 797 (the rule of law is that “ ‘everyone is charged with the knowledge of the United States Statutes at Large’ ”) (quoting Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947)).

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Bluebook (online)
22 Cl. Ct. 156, 21 Envtl. L. Rep. (Envtl. Law Inst.) 20814, 32 ERC (BNA) 1524, 1990 U.S. Claims LEXIS 465, 1990 WL 192924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dufau-v-united-states-cc-1990.