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Creppel v. U.S.

Decided: November 18, 1994.

JACQUES J. CREPPEL, HAROLD L. MOLAISON, LLOYD JAMES DRACHENBERG AND MARRERO LAND & IMPROVEMENT ASSOCIATION, LIMITED, PLAINTIFFS-APPELLANTS,
v.
THE UNITED STATES, DEFENDANT-APPELLEE. JACQUES J. CREPPEL, HAROLD L. MOLAISON, LLOYD JAMES DRACHENBERG AND MARRERO LAND & IMPROVEMENT ASSOCIATION, LIMITED, PLAINTIFFS-APPELLANTS, V. THE UNITED STATES, DEFENDANT-APPELLEE.



Appealed from: U.S. Court of Federal Claims. Judge Nettesheim.

Before Rich, Newman, and Rader, Circuit Judges.

Rader

RADER, Circuit Judge.

Landowners in Louisiana sued the United States Government for blocking a local land reclamation project. The United States Court of Federal Claims held that the statute of limitations bars their takings claims. Creppel v. United States, 30 Fed. Cl. 323 (1994). Because the statute of limitations bars the temporary but not the permanent taking claim, this court affirms in part and reverses in part.

BACKGROUND

The claimants own swamp and marshland in Jefferson Parish, Louisiana. This land floods during the wet season. To control these floods, the Army Corps of Engineers (Corps) approved the Harvey Canal-Barataria Levee Project (Project) in 1964. The Corps designed the Project to close two navigable bayous and to build new levees and a pumping station. The Corps' budget was $1 million. In 1967 Jefferson Parish issued $3.6 million in bonds to guarantee the remaining costs of the Project.

The Project had two phases. Phase I, completed on November 24, 1973, dredged the bayous and used the mud to begin the new levee system. Phase I exhausted the Corps' $1 million budget. Before completion of Phase I, Congress passed the Clean Water Act of 1977 (CWA). Pub. L. No. 95-217, 91 Stat. 1567 (codified as amended in scattered sections of 33 U.S.C.). Section 404 of the CWA prohibits the discharge of dredge or fill material into navigable waterways without a permit. 33 U.S.C. § 1344 (1986 & Supp. V 1993) (section 404 of the CWA).

Under Phase II of the Project, the Corps planned to complete the levee system, close the bayous, and drain the land behind the levees. Phase II began in March 1974. The Parish let a contract for the pumping station to drain the land in August 1974. Meanwhile, on July 10, 1974, the Parish stopped construction until the Corps could determine whether the Project complied with section 404.

On March 26, 1975, the Corps decided that the Project should continue as originally planned. The Environmental Protection Agency (EPA) objected and suggested alternatives to draining the wetlands. The EPA also notified the Corps of its intention to use section 404(c) to prohibit construction of the levees with dredged or fill material.

After negotiations with the EPA and Parish representatives, Brigadier General Drake Wilson issued an order modifying the Project on November 16, 1976 (the Wilson Order). General Wilson ordered construction of the pumping station to halt and ordered the replacement of dikes with flood gates. This order would have eliminated the land reclamation benefits of the original Project. The EPA concurred with the Wilson Order.

Local property owners, many of whom are claimants in this case, 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). They also had obtained a preliminary injunction barring the Parish from abandoning the land reclamation project on October 31, 1977. This injunction became permanent as well. 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).

In 1977, while the state action was pending, the same landowners sued in federal district court to overturn the Wilson Order. The district court held, on summary judgment, that General Wilson did not abuse his discretion in adopting 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). The United States Court of Appeals for the Fifth Circuit also found no abuse of discretion. The Fifth Circuit, however, reversed and remanded to determine whether local assurances were available for completion of the Project, and whether section 404(c) prevented it. Creppel, 670 F.2d at 575. On remand, the district court found that the Parish's refusal to assure the revised Project made its completion impossible. 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 ordered the original Project to proceed. Id.

The EPA began proceedings on December 17, 1984, to determine whether to block the Project by denying a permit under section 404(c). On August 30, 1985, the EPA regional administrator issued a Recommended Determination that the EPA use a section 404(c) veto. The EPA issued a Final Determination on October 16, 1985, permanently blocking the Project.

In May 1986, the landowners sought to overturn the EPA's decision. The district court upheld the EPA's Final Determination and remanded the case to the Corps to determine whether the Parish would grant assurances for the modified Project. Creppel v. United States Army Corps of Eng'rs, No. 77-25, 1988 WL 70103 (E.D. La. June 29, 1988). The Parish did not grant the assurances. The district court, therefore, dismissed the landowners' lawsuit. Creppel v. United States Army Corps of Eng'rs, No. 77-25 (E.D. La. October 12, 1989).

The claimants then filed four consolidated takings claims in the Court of Federal Claims on July 5, October 10, and October 11, 1991. The Government moved for summary judgment on the basis of a time bar under the statute of limitations. The claimants sought to amend their complaints to allege that the limitations period began only when the district court upheld the EPA's Final Determination on June 30, 1988. The Court of Federal Claims held that the claimants' cause of action accrued when the Wilson Order issued on November ...


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