March 21, 2011

Access denied: PLF asks Supreme Court to review EPA's obstruction immunity

By Access denied: PLF asks Supreme Court to review EPA's obstruction immunity

Author:  Luke A. Wake

Pacific Legal Foundation will soon file a petition for certiorari asking the Supreme Court to review a Federal Circuit decision which flies in the face of long-standing Supreme Court precedent. The case involves EPA's decision to cut off access to and from the navigable waters of the San Joaquin River for a Stockton marina owner, Ryan Voorhees. In 2006 EPA installed a log boom in the Old Mormon Slough, making it impossible for Voorhees to access navigable waters from most of his marina, and scuttling his marine-oriented development plans. Ryan Voorhees, President of CRV Enterprises, says that–in taking away his access rights–EPA has violated the Fifth Amendment because the agency has refused to pay him a dime.

Voorhees

In CRV Enterprises Inc. et al. v. United States, the Federal Circuit recognized that Voorhees, as a waterfront landowner in California, has a right to access navigable waters from every inch of his shoreline; however, the court refused to recognize a compensable taking when EPA destroyed that right by physically obstructing CRV's access to the river. In a jarring departure from existing precedent, the decision held that the Supreme Court's physical takings doctrine does not apply in water rights cases where government has refrained from invading the boundaries of a claimant's private property, unless the government actually depletes or diverts a waterway.

The Federal Circuit's decision struggled with the question of whether the physical takings doctrine applies when government destroys a state recognized property right without actually invading the boundaries of the claimant's real property. But, the Supreme Court has made clear that the physical taking test applies in such cases. In United States v. Causby, 328 U.S. 256 (1946), the Supreme Court held that low alltitude flights had interfered with a property owner's use and enjoyment of his property, despite the fact that the flights never entered the actual boundaries of the claimant's property. The Causby Court said that it was entirely irrelevant that the government's actions occurred off site, since the physical effects interefered with the claimant's property rights.

In denying CRV's takings claim the Federal Circuit emphasized the fact that EPA's activities took place in a government owned waterway. But, in Causby, the Supreme Court recognized that the federal government owned the airways in just the same way as it owns navigable waterways. Moreover, the Supreme Court recognized compensable physical takings for government activities occurring beyond the boundaries of a landowner's property even before Causby.

The categorical duty to compensate for such takings was made clear in early water rights cases. In United States v. Cress, 243 U.S. 316 (1917), the Supreme Court found a compensable taking when the United States built a dam in the waters of the United States, which backed up water in tributary creeks. As a result of the dam's construction, a landowner was no longer able to operate a mill, which had previously relied upon the current of a stream in its natural condition; once the stream was backed up, the right to continue using the stream for power was taken away. The decision made clear that water rights are protected under the physical takings doctrine, and that compensation is owed anytime those rights are taken away by physical means.

Similarly, in United States v. Welch, 217 U.S. 333 (1910), the Supreme Court found a compensable taking when the United States took away a private right of access by raising the levels of a waterway with construction of a dam. This destroyed an easement which gave the claimant a right to travel across the property of another landowner. The Government never invaded the boundaries of the claimant's property, but the Government had effected a taking by physical means because it had effectively destroyed the claimant's private right of access.

The same analysis should have been applied in the CRV case because EPA has physically abrogated CRV's right to use its navigational access easement. But the Federal Circuit affirmed dismissal of CRV's takings claim on the theory that there could be no physical taking of a water right absent diversion or depletion of the waterway. This contrived exception cannot be squared with Supreme Court precedent.

In Cress and Welch the Supreme Court found compensable physical takings for the simple reason that property rights had been abbrogated. There is no suggestion that takings liability may be avoided if the Government merely obstructs use of property rights; the physical obstruction was the basis of liability in those cases. If the Supreme Court had contemplated an exception of the nature the Federal Circuit has pronounced, there would have been no taking in either case because in constructing the dams in those cases, the United States had done nothing to deplete or divert the waters in question.

As demonstrated in Cress and Welch, the physical takings doctrine has long been understood to impose a categorical duty to compensate for the taking of any property right. Unfortunately, the Federal Circuit's decision in CRV casts doctrinal confusion over takings law, and raises serious question as to how takings claims should be reviewed in cases dealing with water or access rights. As such, PLF is asking the Supreme Court to take the case to bring clarity and to ensure uniform application of the doctrine throughout the federal circuits. Supreme Court review is all the more important given that the law of inverse condemnation is largely developed in the Federal Circuit.

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