July 01, 2017

In Brief

Theodore L. Garrett

Constitutional issues

White Oak Realty, L.L.C. v. U.S. Army Corps of Engineers, No. 2:13-cv-04761,2017 WL 1153350 (E.D. La. Mar. 28, 2017), appeal pending, No. 17-30438.
A federal district court dismissed a lawsuit brought by plaintiff realty companies challenging the mitigation requirements imposed by the U.S. Army Corps of Engineers on a tract of land owned by plaintiffs in Louisiana. Plaintiffs sought to use soil and clay (“borrow material”) on their property in a Corps project to reinforce certain levees and floodwalls. The Corps concurred as to the suitability of the borrow material, but advised plaintiffs that mitigation of environmental impacts must occur through the purchase of mitigation bank credits. The district court rejected plaintiffs’ argument that its property was taken without just compensation as required by the Fifth Amendment. The court concluded that the imposition of the mitigation requirement for borrow material does not destroy any “bundle of rights” that plaintiffs held by virtue of owning the land. The plaintiffs do not have a compensable property interest in selling their borrow material for use in the Corps’ project without satisfying the Corps’ mitigation bank requirement, the court stated, and thus the regulatory takings claim must be dismissed.

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