Northwest Louisiana Fish & Game Preserve Commission v. United States

62 Fed. Cl. 760, 2004 U.S. Claims LEXIS 300, 2004 WL 2534247
CourtUnited States Court of Federal Claims
DecidedOctober 29, 2004
DocketNo. 02-1031L
StatusPublished
Cited by5 cases

This text of 62 Fed. Cl. 760 (Northwest Louisiana Fish & Game Preserve Commission 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
Northwest Louisiana Fish & Game Preserve Commission v. United States, 62 Fed. Cl. 760, 2004 U.S. Claims LEXIS 300, 2004 WL 2534247 (uscfc 2004).

Opinion

ORDER GRANTING DISMISSAL

FIRESTONE, Judge.

Pending before the court is the United States’ Motion for Judgment on the Plead[761]*761ings.1 The United States argues that the action by Northwest Louisiana Fish & Game Preserve Commission (the “plaintiff’) against the United States (the “government”) for damages resulting from actions committed by the United States Army, Corps of Engineers (“COE”) is barred both by the statute of limitations and for several additional reasons. For the reasons set forth below, the plaintiffs complaint is dismissed on the grounds that the action is barred by the applicable statute of limitations, 28 U.S.C. § 2501 (2004).

BACKGROUND

This case involves actions taken by the COE in connection with the construction of the Red River Navigation Project (the “Project”). The parties agree that the COE entered into an agreement with the Red River Waterway Commission (the “RRWC”), an agency of the State of Louisiana, for the construction of the Project following the failure of Allen Dam in 1982. The parties agree that the Project provided for a 9-foot by 200-foot navigation channel extending about 236 miles from the junction of Red River with the Mississippi River, to Old River, and up Red River to the vicinity of Shreveport, Louisiana. The Project also called for five locks and adjacent dams to be constructed to provide the lift and permanent minimum pool levels to accommodate navigation.

The plaintiff alleges that it is charged by law with the control and management of Black/Clear Lake and the surrounding preserve, which is adjacent to Red River. In particular, the plaintiff alleges that it is charged by the State of Louisiana with the authority to make rules and regulations to manage and control the taking of fish and game from the preserve and do all things necessary to conserve and propagate fish and game in the preserve. The plaintiff charges that its ability to manage Black/Clear Lake has been impaired by the COE’s actions on Red River.

Although the State of Louisiana rather than the plaintiff owns Black/Clear Lake, the plaintiff alleges that with regard to its relationship to the Black/Clear Lake Complex, it is the “alter ego” of the State. In its Amended Complaint2, the plaintiff alleges the COE interfered with its ability to fulfill its obligations with respect to Black/Clear Lake by raising the pool level of Pool 3 from 88 feet M.S.L. to 95 feet M.S.L. As a consequence, the plaintiff has not been able to adequately draw down, or adjust to a lower level, the water level in Black/Clear Lake. The plaintiff claims that the inability to draw down the water level has prevented the plaintiff from being able to effectively manage undesirable aquatic weed growth on Black/Clear Lake. Specifically, the plaintiff contends that a severe hydrilla and coontail3 problem have rendered a large portion of the lake inaccessible by boat, and that the plaintiffs ability to manage the lake’s fish populations has been severely impaired. The plaintiff characterizes this accumulation of undesirable aquatic growth as a continuing trespass and/or continuing nuisance, as well [762]*762as an unlawful appropriation of lands, waters and properties, without full and fair just compensation.4

It is not disputed that during the planning phase of the Project, and as early as 1988, various branches of the State of Louisiana sent and received letters noting that the planned raising of the pool level would interfere with the plaintiffs ability to control aquatic growth in Black/Clear Lake. In these letters, various units of the State of Louisiana noted, inter alia, that the plaintiffs ability to draw down the pool level would be impaired by the COE’s action, and that this inability to draw down the water level would lead to undesirable aquatic growth. It was further noted that the estimated cost of using alternative methods to control aquatic growth in Black/Clear Lake would amount to $7,750,000.

As early as 1988, close in time to the beginning of the Project, Neil Wagoner of the State of Louisiana Department of Transportation and Development informed the COE that raising the level of Pool 3 would interfere with the ability to control aquatic growth in Black/Clear Lake. In a letter to Colonel Skidmore of the COE, Mr. Wagoner wrote: “I am in receipt of your letter of August 30, 1988 regarding Pool 3 of the Red River Waterway Project and the effects this pool may have on Nantachie, Black-Clear and Saline Lakes.... [T]he proposed navigation pool level will interfere with lake management activities normally carried out by the Louisiana Department of Wildlife and Fisheries.” Letter from Wagoner to Skid-more of 10/7/88.

Only one week later, Virginia Van Sickle, of the State of Louisiana Department of Wildlife and Fisheries, wrote to the Louisiana Department of Transportation and Development, more specifically outlining the damages that would be caused by the government’s elevation of Pool 3. Van Sickle wrote: “Black-Clear Lake will have a 4.5 ft. drawdown capability at the 95.0 M.S.L. elevation at Pool 3. A normal drawdown from 8— 10 ft. is required for most nuisance aquatic plants.” Letter from Van Sickle to Patterson of 10/14/88. Van Sickle indicated a specific time frame in which the damage would occur. She noted that “[djrawdowns on Black Lake average once per every three years, with certain years having successive mid-June to mid-January and Labor Day to mid-January drawdowns to control various types of nuisance aquatic growth.” Id.

In response to the State of Louisiana’s concerns about its inability to manage the aquatic growth in Black/Clear Lake, in 1989 David Haworth III of the COE informed the plaintiff of its findings: “We have found that the drawdown of the lake will be less than is desired by the Lousiana Wildlife and Fisheries Staff. However, Pool No. 3 will allow 4.5 feet of drawdown with the 95-foot pool level.” Letter from Haworth to Cunningham of 3/29/89. Far from concealing its intention, the COE made it very clear to the plaintiff at this time that it intended to go ahead with the Pool 3 water level increase, despite the fact that the resultant limited drawdown would be insufficient to cure the inevitable aquatic growth. In response to the plaintiffs request for relief from the COE’s decision, the COE stated that it “cannot commit to Federal implementation of any corrective measures for Black Lake.” Id.

The State of Louisiana Department of Wildlife and Fisheries took the additional step of calculating the loss that it expected to suffer due to its inability to draw down water from Black/Clear Lake. In a letter to Senator Bennett Johnston, the Department of Wildlife and Fisheries first recounted the effect of the inability to control the water level in Pool 3 following its elevation: a less than optimal [763]*763drawdown “without incorporation of other aquatic plant management disciplines would exacerbate aquatic weed infestation and expand the problem area.” Letter from Herring to Johnston of 7/27/92. In the same letter, the State of Louisiana Department of Wildlife and Fisheries stated that, due to the raising of the pool level, it projected the cost of controlling aquatic growth over the lifetime of the Project to be $7,575,000.

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62 Fed. Cl. 760, 2004 U.S. Claims LEXIS 300, 2004 WL 2534247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northwest-louisiana-fish-game-preserve-commission-v-united-states-uscfc-2004.