Federal Circuit Allows Louisiana Takings Claim to Advance

Northwest La. Fish & Game Preserve Commn. v. U.S., 446 F.3d 1285 (Fed. Cir. 2006)

Josh Clemons

In May the U.S. Court of Appeals for the Federal Circuit reversed a decision by the Court of Federal Claims, thereby allowing a takings claim by a Louisiana state agency against the U.S. Army Corps of Engineers to proceed.

Background
At the heart of this case is Louisiana’s Northwest Fish and Game Preserve, a sanctuary for fish and wildlife that also provides recreational opportunities. The Preserve, which is managed by the Northwest Louisiana Fish and Game Preserve Commission (Commission), includes a pair of lakes referred to collectively as Black Lake. Black Lake is vulnerable to overgrowth of aquatic weeds, which the Commission attempts to control by drawing down lake levels into the Red River.

The Red River is of interest to the U.S. Army Corps of Engineers (Corps). In 1968 Congress authorized the Corps to construct the Red River Project (Project) to ensure the river’s year-round navigability. The Project consists of a series of locks and dams. Lock and Dam 3 (L&D 3) impounds water in Pool 3, which the Corps has maintained since 1994 at an elevation of ninety-five feet above mean sea level (95 MSL). Pool 3 directly limits the drawdown potential of Black Lake, the elevation of which is approximately 99.5 feet above mean sea level. The Commission contends that it needs to be able to draw down Black Lake to approximately 88.5 feet to control aquatic weeds. The elevation of Pool 3 allows a drawdown only to ninety-five feet.

In the late 1980s and early 1990s the Corps conducted studies of aquatic vegetation and the effect Pool 3 would have on Black Lake. The studies focused primarily on the invasive and highly troublesome water hyacinth. Hydrilla, a submerged weed, was not considered to be a potential problem and thus was not part of the studies.
In the fall of 1996, almost two years after Pool 3 reached 95 MSL, hydrilla was recognized as a growing problem in Black Lake. The Commission asked the Red River Waterway Commission (RRWC), a state entity that assisted the Corps with Project operations, if there was a chance that Pool 3 could be lowered to allow Black Lake to be drawn down enough to kill the hydrilla. The RRWC passed the request along to the Corps, which denied it in January 1997. There would be no drawdown, and the hydrilla would continue to infest Black Lake.
In February 1997 the Commission sued the RRWC in federal court for land appropriation and/or inverse condemnation. The RRWC brought in the Corps as a defendant. Because the Corps bore actual responsibility for the elevation of Pool 3, the court allowed the RRWC to withdraw from the case.

In December 2000 the Commission began an administrative action against the Corps, seeking $30 million for various damages associated with Pool 3, including the hydrilla problem, that had occurred since January 1995. Nothing came of this administrative action.

In July 2001 the Commission sued the Corps under the Federal Tort Claims Act (FTCA)1 and the Fifth Amendment of the U.S. Constitution, which forbids the government from taking property without paying just compensation. The Commission alleged that the Corps’ actions had prevented it from effectively managing the Preserve, and that fixing the problems would cost approximately $26 million. The district court dismissed the FTCA claim because it determined that the claim had accrued by January 1997, and there is a two-year statute of limitations on tort claims against the federal government.2 The takings claim, which had a six-year limitation period, was transferred to the Court of Federal Claims.

The Court of Federal Claims dismissed the takings claim because it determined that the cause of action accrued when Pool 3’s 95 MSL elevation was reached in December 1994, more than six years before the Commission filed suit. The Commission appealed this dismissal to the U.S. Court of Appeals for the Federal Circuit.

The Appeals Court’s Decision
The only issue on appeal was whether the lower court had correctly determined the date by which the Commission’s claim accrued. Had the claim actually accrued within the six-year period prior to July 5, 2001, when the Commission filed suit?

The court began its analysis by reviewing the characteristics of a taking. Simply put, a taking occurs when the government deprives a property owner of all or most of a property interest without compensation. Several courts have found takings to have occurred when lands were flooded by the operation of public works projects.
When analyzing a takings claim it is necessary first to clearly identify what property right has been taken. In this case, the Commission claimed the Corps appropriated its “right to possess, use, regulate, and maintain” Black Lake.3 The Commission argued that this takings claim accrued in 1997 when the Corps refused the drawdown. The trial court, however, thought the claim accrued in 1994 when the elevation in Pool 3 reached 95 MSL, because the Commission “knew or should have known that raising the pool level would result in uncontrolled aquatic plant growth.”4

The appeals court found the lower court’s analysis to be faulty. A takings claim accrues when the plaintiff knows or should know of the damage, and “all events which fix the government’s alleged liability have occurred.”5 When the elevation of Pool 3 reached 95 MSL, the actual harm had not occurred; only the potential for harm had been established. The harm itself did not come into fruition until hydrilla had grown to harmful levels. The manifestation of the harm occurred gradually as a result of continuous natural processes.

In cases where the harm from a taking emerges gradually, courts may apply a principle originally enunciated by the U.S. Supreme Court: “when the government allows a taking of land to occur by a continuing process of physical events, plaintiffs may postpone filing suit until the nature and extent of the taking is clear.”6 The appeals court reasoned that the extent of the taking in this case would not be clear until “the hydrilla had grown, and had grown to harmful levels, and the Corps refused to drain the lake to alleviate the harm caused by the overgrowth of hydrilla.”7 The true accrual date, according to the appeals court, was no earlier than January 1997, which was within the limitations period.

Dissent
Judge Alan D. Lourie dissented from the majority opinion on the ground that the limitation period starts at the time of the government action, not at the time the damages from that action are realized. He believed that the lower court had correctly determined this time to have been December 1994, when Pool 3 was filled. In Judge Lourie’s view, the Dickinson doctrine applies only to a narrow class of cases involving takings effected by continuing flooding, and not in this case wherein “gradual harm [was] caused by a singular discrete act: the taking of the right to drain water from Black/Clear Lake into Red River.”8 Judge Lourie would have upheld the lower court’s decision.

Conclusion
Judge Lourie’s reasoning notwithstanding, the Federal Circuit Court of Appeals reversed the Court of Federal Claims’ dismissal of the Commission’s case on statute of limitations grounds. The case will return to the lower court for further proceedings.

Endnotes
1. 28 U.S.C. § 2675.
2. 28 U.S.C. § 2401(b).
3. Northwest La. Fish & Game Preserve Commn. v. U.S., 446 F.3d 1285, 1290 (Fed. Cir. 2006).
4. Id. (internal quotes omitted).
5. Id.
6. Fallini v. U.S., 56 F3d 1378 (Fed. Cir. 1995); see U.S. v. Dickinson, 331 U.S. 745 (1947)
7. Northwest La. Fish & Game Preserve Commn. at 1291.
8. Id. at 1293 (Lourie, J., dissenting).

University of Mississippi