Formanek v. United States

26 Cl. Ct. 332, 22 Envtl. L. Rep. (Envtl. Law Inst.) 20893, 35 ERC (BNA) 1406, 1992 U.S. Claims LEXIS 217, 1992 WL 102477
CourtUnited States Court of Claims
DecidedMay 14, 1992
DocketNo. 764-86L
StatusPublished
Cited by22 cases

This text of 26 Cl. Ct. 332 (Formanek 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
Formanek v. United States, 26 Cl. Ct. 332, 22 Envtl. L. Rep. (Envtl. Law Inst.) 20893, 35 ERC (BNA) 1406, 1992 U.S. Claims LEXIS 217, 1992 WL 102477 (cc 1992).

Opinion

OPINION AND ORDER

ROBINSON, Judge:

In this Fifth Amendment taking case, plaintiffs seek damages arising from defendant’s denial of a Clean Water Act permit to discharge fill on plaintiffs’ land. Plaintiffs also seek interest, attorney fees and costs. Trial was held May 14-24, 1991, in St. Paul, Minnesota. Oral and documentary evidence were admitted at the trial, and [333]*333post-trial briefs were filed. Upon full consideration of the entire trial record, the court concludes that plaintiffs prevail in this action. For the reasons stated herein, the court finds that a taking has occurred and that plaintiffs are entitled to just compensation.

Factual Background

The relevant facts are set forth in an earlier published opinion, Formanek v. United States, 18 Cl.Ct. 785, 787-89 (1989), and are repeated only to the extent necessary here. Plaintiffs in this action own certain real property in Savage, Minnesota in the following proportions: Mr. Ray Formanek, V2; Mr. Ray Formanek and Mrs. Joan Formanek, 'A; Jerome V. Blatz, Vs; and Johan M. Larsen, Vs.1 As is often the case with large tracts of land, plaintiffs’ ownership interests changed over the years. In 1960, Mr. Formanek purchased 160 acres in Savage for $18,000.2 On August 10, 1960, Mr. Formanek conveyed an undivided V2 interest in the entire 160 acre parcel to Lake Marion Development Company and an undivided Vt interest to Mr. J.A. Torbol. On March 7,1966, Mr. Formanek reacquired an undivided Vj interest in the 160 acre parcel from the estate of Mr. Albert A. Ogdie for $12,000, which estate had received this interest from Lake Marion Development Company after Mr. Ogdie’s death. On May 18, 1966, Mr. and Mrs. Formanek acquired an undivided Vi interest in the property from J.A. Torbol for $12,000. Thus, by 1966, the Formanek’s owned an undivided ¾ interest in the 112 acre parcel which is the subject of this litigation.3

The property at issue in the instant case consisted of 12 acres of uplands, over which the U.S. Army Corps of Engineers (“Corps”) has no jurisdiction, and 99 acres of wetlands. Within the wetlands were 45 acres of a calcareous fen plant community.4 The property lies within the Minneapolis-Saint Paul, Minnesota metropolitan area. Specifically, the property comes within the municipal boundaries of Savage, Minnesota and is part of an area known as the Savage Fen Wetland Complex. The Savage Fen consists of approximately 500 acres containing an alkaline, groundwater-fed peat. The Fen supports a variety of wetland plant communities including sedge meadow, shrub-carr, hardwood trees and other plants which are indigenous to a calcareous fen. In short, the Fen is a rare wetland plant community.

At the time Mr. Formanek purchased the property, he did not know that it contained a calcareous fen or unusual wetlands. He learned of the Fen years later when the Minnesota Department of Natural Resources (DNR) and the Corps became interested in his land. The DNR first became interested in the Fen in 1979. In 1980, Mr. Welby Smith, a botanist for the DNR’s Natural Heritage Program, began to visit the property to study and catalogue the plants located there. Typically, Mr. Smith would walk around the property, look for the presence or absence of any endangered, threatened or special concern plant species and remove samples of these plants from the property. Of his eleven trips onto plaintiffs’ property, at least two were unauthorized and several included bringing tours of people onto the property. The Saint Paul District of the Corps became aware of the ecological significance of the Fen in 1979 as a result of a lawsuit involving the Black Dog Fen in a neighboring Minneapolis-Saint Paul suburb. Beginning in 1981, Mr. Steve Eggers, a Corps branch ecologist, made several trips onto the property without the owners’ permission to study and photograph the plants. The Corps considered exercising discretionary [334]*334authority over the fen as early as June, 1982 but delayed action when it learned that the state was negotiating with plaintiffs to buy the property for a use compatible with wetlands.

DNR representatives first offered to buy plaintiffs’ property in 1981. Both parties had appraisals done of the land. Based on their appraisal, the DNR offered plaintiffs $590,000 for the land. Mr. Formanek refused the offer as his appraisal was more than twice that amount. The DNR’s subsequent offers to buy the land were even lower and negotiations eventually were terminated.

On July 21, 1983, Mr. Dennis E. Cin, Chief of the Corps’ Regulatory Functions Branch, notified Mr. Formanek that the Corps had exerted discretionary authority over a portion of the property’s wetlands to override the nationwide permit requirement. A nationwide permit is a general permit which authorizes discharge or fill activities throughout the country with minimal constraints. See 33 C.F.R. § 330.1. The Corps’ exertion of discretionary authority prohibited the development of the Formanek property without an “individual permit.” The individual permit procedure is more protracted than the nationwide permit process and requires a public hearing and determination of whether the proposed discharge is in the public interest. See 33 C.F.R. § 323.2(g).

Mr. Formanek contacted the DNR immediately upon the receipt of Mr. Cin’s letter. On July 25, 1983, Mr. Denis C. Dailey, Supervisor of Realty Specialists for the DNR, responded to Mr. Formanek in writing. In his letter, Mr. Dailey noted that “potential restraints as the Corps of Engineers may impose on the development of this land may also affect the highest and best use of the property and consequently the value.”

Apparently, Mr. Cin’s letter was premature as the Corps waited until November 29,1983 to officially exert control over a 40 acre portion of the Savage Fen. On March 4, 1985, the Corps extended its discretionary authority over 146 more acres of the fen. Thus, all of Mr. Formanek’s property except the uplands was subject to the individual permit requirement. On October 9, 1985, plaintiffs filed a § 404 permit (33 U.S.C. § 1344) application with the Corps to place fill material on the property to build an access road. This application was denied and litigation ultimately ensued.

DISCUSSION

A perennial headwater stream originates from springs and seepages at the toe of the property’s southern bluff and extends through its western edge and ultimately flows into the Minnesota River, a navigable water of the United States. Thus, the Fen is considered to be itself a water of the United States. Section 404 of the Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. § 1344, authorizes the Secretary of the Army, acting through the Corps, to issue permits for discharge of fill in the navigable waters of the United States. The Corps’ denial of the section 404 permit was not appealed and, therefore, is not subject to review by this court under any standard. Consequently, this court must accept the legality of the Corps’ action in denying plaintiffs’ permit application.

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Bluebook (online)
26 Cl. Ct. 332, 22 Envtl. L. Rep. (Envtl. Law Inst.) 20893, 35 ERC (BNA) 1406, 1992 U.S. Claims LEXIS 217, 1992 WL 102477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/formanek-v-united-states-cc-1992.