sandbar 7.1

The Fifth Amendment provides, “nor shall pri-vate property be taken for public use, withoutjust compensation.” Courts will generally find aright to compensation when the government 1)directly appropriates private property; 2) physi-cally occupies private property; and 3) imposesa regulatory constraint on the use of property sosevere as to deprive an owner of all economical-ly beneficial use.

The first and second categories might alsobe called “eminent domain” or “condemna-tion.” Eminent domain is “the inherent powerof a governmental entity to take privately ownedproperty, especially land, and convert it to pub-lic use, subject to reasonable compensation forthe taking.”1 Condemnation is “to determineand declare that certain property is assigned topublic use.”2 Inverse condemnation is “anaction brought by a property owner for compen-sation from a governmental entity that hastaken the owner’s property without bringingformal condemnation proceedings.”3

An example of a physical taking is theLoretto v. Teleprompter Manhattan CATVCorporation case. In Loretto, the governmentrequired landlords to allow installation of cabletelevision in their rental properties. In thatinstance, the government gave itself the right tooccupy a portion of the private property withoutpaying for the privilege.

The third category of takings is considered aregulatory taking. As noted above, mere regula-tion of property is not enough for a court to finda taking. The regulation must deprive an owner

of all economically beneficial use. For instance,in Lucas v. South Carolina Coastal Council, thecourt found that a zoning ordinance prohibitingall development on a property owner’s landresulted in a regulatory taking.4

If the regulation merely decreases the valueof the property, it will not necessarily result in ataking. The court will perform a multi-factorbalancing test outlined in Penn CentralTransportation Co. v. New York City5 to determinewhether or not there has been a taking. The fac-tors include: 1) the extent to which the regula-tion interferes with investment-backed expecta-tions; 2) the economic impact of the regulationon the claimant; and 3) the character of the gov-ernment’s interest, or the social goals being pro-moted by the government.

In this edition of The SandBar, we havefocused on various takings issues. The cases rangefrom more “traditional” takings cases involvingland use regulations to more novel cases, includ-ing a case in which fishermen alleged a takingwhen their fishing licenses were rendered uselessby an area being designated as a national wildliferefuge. Please enjoy and feel free to contact uswith any questions or comments.

EEnnddnnootteess1. BLACK’S LAW DICTIONARY 233 (2d Pocket ed.

2001). 2. Id. at 123-124. 3. Id. at 124.4. 505 U.S. 1003 (1992). 5. 438 US 104 (U.S. 1978).

Takings 101

Legal Reporter for the National Sea Grant College Program

TheVolume 7:1, April, 2008

Bailey v. United States, 2007 WL 2317493 (Ct.Fed. Cls. Aug. 10, 2007)

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The Court of Federal Claims held that a privateproperty owner may seek compensation for aregulatory taking of property at any time theregulation continues to be enforced, even if theregulation existed prior to the purchase of theproperty or a previous owner had been awardedcompensation for the same regulatory taking.

BBaacckkggrroouunnddIn 1989, Gary Bailey bought land bordering theLake of the Woods in Minnesota. Bailey initial-ly planned to build a marina or a harbor on theproperty, so he applied to the United StatesArmy Corps of Engineers (Corps) for a dredg-ing permit. In 1990, the Corps approved thepermit; however, Bailey never began the pro-ject. Three years later, the Corps informedBailey that he would need a different permit tocomplete the project because the property waslocated in a wetlands area and suggested thatBailey hire a consultant to designate which por-tions of his property were wetlands.

Bailey did not take any action until late1996 when he applied to Lake of the WoodsCounty to have 13.2 acres of his property alongthe lakeshore platted as a subdivision. As a con-dition of approval from the county, Bailey had

Regulatory Takings Issue Volume 7, No. 1 The SandBar

Regulatory Takings Issue

Takings 101Terra Bowling . . . . . . . . . . . . . . . . . . . . . . . 1

Court Finds Regulatory Taking of Developer’s Property

Sarah Spigener . . . . . . . . . . . . . . . . . . . . . . 2

Court Dismisses Commercial Fishing License Claims

Surya Gunasekara . . . . . . . . . . . . . . . . . . . .3

Rolling Beach Easement not a TakingJoseph Rosenblum . . . . . . . . . . . . . . . . . . . . 5

Court Denies Regulatory Taking in Designated Port Area

Alicia Schaffner . . . . . . . . . . . . . . . . . . . . . . 7

Landowners Prevail in Beach Access CaseLynda Lancaster . . . . . . . . . . . . . . . . . . . . . . . .9

Court Rejects Condemnation of Private Property under Salmon Recovery Act

Sara Wilkinson . . . . . . . . . . . . . . . . . . . . . . . 12

Restriction on Water Use Not a Per Se TakingTerra Bowling . . . . . . . . . . . . . . . . . . . . . . . 14

Permit to Remove Sand Is an ImminentInjury to Beachgoers

Margaret Enfinger . . . . . . . . . . . . . . . . . . . 16

Corps Liable for Shoreline Erosion on Lake Michigan

Terra Bowling . . . . . . . . . . . . . . . . . . . . . . . . 18

Protecting Your Copyrighted WorksWill Wilkins . . . . . . . . . . . . . . . . . . . . . . . . 21

Coast to Coast . . . . . . . . . . . . . . . . . . . . . . . . . 23

Table of Contents

See Regulatory Taking, page 11

Court Finds Regulatory Taking

of Developer’sProperty

Volume 7, No. 1 The SandBar Regulatory Takings Issue

Palmyra Pac. Seafoods, L.L.C. v. United States, 80Fed. Cl. 228 (2008).

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When the United States closed Palmyra Atoll tocommercial fishing, several fishing licenseesbrought suit alleging a Fifth Amendment takingclaim. The Unites States Court of FederalClaims held that there was a frustration of pur-pose but no taking of tangible property interestsunder the Fifth Amendment and subsequentlygranted the United States’ Rule 12(b)(6) motionto dismiss for failure to state a claim.

BBaacckkggrroouunnddPalmyra Atoll (Palmyra) and Kingman Reef areUnited States territories located approximately1,000 nautical miles south of Hawaii. They are“surrounded by a 200 nautical mile UnitedStates Exclusive Economic Zone (EEZ) thatexcludes foreign fishing vessels.”1 During WorldWar II the United States Navy established abase on Palmyra, which consisted of an airstrip,dock, harbor, and base camp. The Navy held theKingman Reef until August 25,2000, when it was transferred tothe Department of the Interior.However, after World War II, theFullard-Leo family defeated theUnited States in the SupremeCourt to establish quiet title ofPalmyra.2

The Fullard-Leo family heldtitle to the emergent land ofPalmyra until late 2000, when thefamily sold the atoll to TheNature Conservancy. Prior to thesale, the Fullard-Leo familyassigned rights to Palmyra De-velopment Co., Inc. (PDC),

which included the right to convey an exclusivelicense for a commercial fishing operation onPalmyra and use of the former base infrastruc-ture. These license rights were then assigned byPDC to Palmyra Pacific Enterprises, L.L.C.(PPE). On November 17, 2000, PDC and theFullard-Leo family gave written consent forPPE to assign their license rights to PPELimited Partnership (PPELP) and grantedPPELP permission to sublicense its rights toPalmyra Pacific Seafoods, L.L.C. (PPS). Fol-lowing this agreement PPS made substantialinvestments on Palmyra in preparation fordeveloping a commercial fishing operation.

On January 18, 2001 the tidal lands, sub-merged lands, and waters out to 12 nauticalmiles surrounding Palmyra and Kingman Reefwere designated as a National Wildlife Refugeby order of the Secretary of the Interior. Sixdays later the Department of Interior(Interior) closed Palmyra and Kingman Reef tocommercial fishing. In 2003 and 2006, TheNature Conservancy conveyed portions of itsholdings on Palmyra to Interior to be includedin the refuge.

See Commercial Fishing, page 4

Court Dismisses CommercialFishing License Claims

Photograph of Palmyra Island courtesy of NOAA’s National Climatic Data Center.


The plaintiffs PPS, PPE, and PPELP,alleged that the refuge designations prohibitingpublic access and commercial fishing onPalmyra and Kingman Reef left their variouslicenses, sublicenses, facility improvements,and fishing operations worthless. As a result,the plaintiffs argued that the government’saction constituted a taking of valuable propertyinterests for public use without just compensa-tion in violation of the Fifth Amendment.

MMoottiioonn ttoo DDiissmmiissss CCllaaiimmThe United States moved to dismiss under Rule12(b)(6) for failure to state a claim upon whichrelief may be granted. The United Statesargued that the plaintiffs’ licenses were not cog-nizable property interests under the FifthAmendment, but mere licenses, and thus notsubject to the takings clause. The takingsclause of the Fifth Amendment protects prop-erty interests by stating that private propertyshall not be taken for public use without justcompensation.3 In evaluating whether a takingsclaims has been stated the court applies a twopart test. “First, the courtmust determine whetherplaintiffs have estab-lished a property inter-est for the purposes ofthe Fifth Amendment.”4

Second, after the proper-ty interests in questionhave been identified, thecourt must determine ifthe government actionconstitutes a compensato-ry taking.

The plaintiffs con-tended that they had aproperty interest in theseries of contractuallicenses which grantedthe exclusive, transferableright to use Palmyra forcommercial fishing oper-ations and these interestswere protected by the

Fifth Amendment. The United States arguedthat the plaintiffs only held licenses, which arenot cognizable Fifth Amendment property inter-ests. The court determined that this case hingedon the issue of whether the plaintiff actually pos-sessed a protected property interest.

In its analysis, the court relied on ColvinCattle Co. v. United States, where the plaintiffalleged that the government had taken propertyinterests in ranch and water rights after cancel-ing on a long term grazing contract on an adja-cent pasture.5 In Colvin Cattle, the federal cir-cuit court found that despite the possible loss invalue of the ranch from losing the grazing lease,there had not been a taking because the loss didnot occur from government restrictions on aprotected property interest.

The court found the facts in Colvin Cattle tobe analogous with the case at bar. Here, theplaintiffs had no property interest in the tidallands, submerged lands, or surrounding waters.In fact, the Fullard-Leo family only had title tothe emergent lands of Palmyra and thus lacked

Commercial Fishing, from page 3

See Commercial Fishing, page 20

Photograph of commerical fishing boat courtesy of Oceansart.us/Marine Photobank at http://www.OceansArt.us and photographer John T. Everett.


Severance v. Patterson, 485 F. Supp. 2d 793 (S.D.Tex. 2007).

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A federal district court in Texas recently reject-ed a takings challenge to a rolling public beacheasement and related enforcement provisionsunder the Texas Open Beaches Act (TOBA).The court in Severance v. Patterson ruled on twosignificant claims; first, a takings claim basedon the potential removal of three houses locatedwithin a “rolling” public beach easement, and,second, an alleged physical occupation claimbased on public access to the dry beach. Thecourt dismissed both claims.

BBaacckkggrroouunnddIn early autumn of 2005, Carol Severance pur-chased three houses on Galveston Beach, Texas.Under the TOBA, and related underlying prin-ciples of Texas state law, the public has a “freeand unrestricted right of ingress and egress”1 tostate-owned beaches on the Gulf of Mexico. Incases where the state retains an easement byvirtue of continuous use by the public, the pub-lic has a right over the dry beach extending fromthe seaward boundary, marked by the meanhigh tide line, to the landward boundary delin-eated by the vegetation line. The Act furthercreates a presumption that the public hasacquired such an easement over the dry beacharea, placing the burden on landowners to pre-sent evidence to rebut this presumption. TOBAgrants the Texas Attorney General the power toenforce the easement and specifically toremove obstructions to the public’s right ofaccess from the beach, including structuressuch as houses.

Severance’s purchase contract for the threehouses included a disclosure from the seller thatthe vegetation line customarily marks the land-ward boundary of the public beach easement. It

further disclosed that structures seaward of thevegetation line may be subject to removal.

In the summer of 2006, the state surveyedthe vegetation line in the area of Severance’shouses and concluded that two of them wereentirely seaward of the vegetation line and halfof the third was seaward of the vegetation line.Consequently, according to the state, some ofSeverance’s properties, including all or portionsof the houses, were on the public beach becausethe vegetation line had moved. The state thencontacted Severance and informed her that theAttorney General could seek removal of anyportion of the homes that encroached on thepublic beach.

Severance subsequently filed a federalaction to stop the state from enforcing the pub-lic easement against her. She alleged that at thetime of purchase all three of the houses werelandward of the vegetation line; only after herpurchase did the landward boundary movecausing the houses to be located on the drybeach. Her claim was predicated on two relat-ed claims both arising under the U.S.Constitution’s Fifth Amendment takingsclause. The first claim was based on possibleremoval of the houses while the second wasbased on the imposition of an easement allow-ing public access to the beach area.

The court first addressed the takings claimrelating to the threat of home removal. Notingthat no removal action had been initiated at thetime of suit, the court held that the claim wasnot ripe because it was unclear as to when or ifthe state would actually remove any of the hous-es. Only if at some time in the future the stateseeks to remove Severance’s houses would shehave a ripe constitutional claim.

The court then addressed the claim regard-ing public access to the beach easement which itconcluded ultimately came down to whether the

See Rolling Beach Easement, page 6

Rolling Beach Easement Not a Taking

state of Texas could constitutionally enforce abeach easement for public access that expandsand contracts as the vegetation line movesthrough natural processes. In addressing themerits of this question, the court noted that theTexas judiciary has repeatedly recognized thevalidity of such beach easements and has con-sistently rejected similar constitutional claimsto those raised by Severance. Further, TOBAdoes not provide an additional right, but mere-ly identifies an enforcement mechanism for aneasement that already existed at common law.

Accordingly, the court concluded thatSeverance could not show interference with aprotected property interest. Rather, her“allegedly-invaded interests in her rental prop-erties are (and always have been) subject to thepublic’s superior interest in its pre-existingeasement.”2 Moreover, while natural changesmight shift the boundary of the easement, “thisnatural movement does not work a constitu-tional wrong.”3

BBaacckkggrroouunndd PPrriinncciipplleess ooff SSttaattee LLaawwThe court additionally made specific findingsthat its decision was consistent with theSupreme Court’s landmark takings decision,Lucas v. South Carolina Coastal Commission, 505

U.S. 1003 (1992). In Lucas,the Supreme Court heldthat an owner suffered acompensable taking whenthe Coastal Commissionenacted a total ban on allbeach construction prevent-ing the owner from buildingon property that he pur-chased prior to passage ofthe legislation. The Courtin Lucas also recognized,however, that no takingoccurs where governmentaction simply gives effect to“background principles ofstate law.”4

The Severance court ex-plicitly recognized Texas’

rolling beach easements as a background princi-ple of Texas state law. In Severance, unlike inLucas, the relevant property law was establishedlong before the purchase of the impacted prop-erties. Further, a rolling beach “easement is oneof the ‘background principles’ of Texas littoralproperty law.”5 Consequently, Severance couldnot have suffered a takings because “her right toexclude the public never extended seaward ofthe dynamic, natural boundary of the beach.”6

CCoonncclluussiioonnThe court ultimately dismissed the suit notingthat nothing in the federal constitution pro-hibits applying the principles of accretion anderosion to establishing property boundaries andholding that Severance’s property interests weresubject to the pre-existing beach easement.

EEnnddnnootteess1. TEX. NAT. RES. CODe § 61.011(a).2. Severance v. Patterson, 485 F. Supp. 2d 793,

803 (S.D. Tex 2007).3. Id. at 804.4. Lucas, 505 U.S. at 1029.5. Severance, 485 F. Supp. 2d at 804.6. Id.


Rolling Beach Easement, from page 5

Photograph of Texas beachfront property threatened by beach erosion provided courtesy of Ellis Pickett,Chairman of Texas Surfrider's Foundation.


United States Gypsum Company v. ExecutiveOffice of Environmental Affairs, 867 N.E.2d 764(Mass. App. Ct. 2007).

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A Massachusetts appellate court has concludedthat there was no regulatory taking of propertyin a designated port area (DPA) when theDirector of the Massachusetts Office of CoastalZone Management placed requirements on aproperty owner as a condition of being excludedfrom the DPA.

BBaacckkggrroouunnddThe Massachusetts Office of Coastal ZoneManagement (OCZM) has created designatedport areas (DPA) in order to encourage properuse of coastal resources in a manner that is con-sistent with the federal Coastal Zone Manage-ment Act. These regulations are to promote“water dependent indus-trial uses” of the re-sources.1 The theory be-hind these regulations isthat non-industrial andnon-marine uses have a“far greater range of lo-cational options.”2

In 2002, five propertyowners in the DPA askedfor the OCZM to con-duct a “boundary re-view” to decide if theirlands should remainwithin the DPA. All ofthese property ownerswanted to use their landfor non-water dependentuses such as residential

condominiums. The OCZM found that oneproperty could be excluded from the DPA, twoshould stay in the DPA, and two could beexcluded once the owners complied with certainconditions. These conditions included an ease-ment for a roadway that was to be built on theproperties. The Director of the OCZM acceptedthe conclusions from the boundary review.

Three property owners, United StatesGypsum Company, LaFarge North America,Inc., and Charlestown Commerce Center(CCC), brought three separate suits, which werelater consolidated. Two of the property ownersrequested the reversal of the conditional exclu-sions from the DPA on the following grounds: 1)the director exceeded his authority when mak-ing this decision and 2) he did not have sub-stantial evidence when he made his decision.Additionally, the owner of CCC, DonatoPizzuti, requested “a boundary review leading

See Designated Port, page 8

Court Denies RegulatoryTaking in Designated Port Area

Photograph of industrial port courtesy of NOAA.


to exclusion of the CCC from the DPA[,]” andchallenged “the denial of an exclusion for theCCC in the proceedings under review” as adenial of due process and stated that the CCC’s“continued inclusion in the DPA constituted aregulatory taking.”3

The lower court concluded that the direc-tor’s decision was within his power to make anddenied all of plaintiffs’ claims. All appealed.

TThhee CCoouurrtt’’ss DDeecciissiioonnThe Appeals Court of Massachusetts in Suffolkdisagreed with the lower courts on all claimsexcept those in regard to the CCC. The courtfirst looked at the director’s authority. The DPAdesignation regulations state that a propertymust be included in the DPA when it meets thedesignation standards. The OCZM can onlymake “minor adjustments” to a DPA boundaryand these adjustments should not have the con-sequence of a “net reduction in the total area ofthe DPA.”4 The court found that these regula-tions clearly limit the director’s discretion indesignation. Furthermore, the purpose of theregulations is to preserve the coast for water-dependent industrial use to the greatest extentpossible. The director admitted that the exclu-sion would cause a six percent reduction of theDPA’s land area, but found this to be acceptable.

There are many regulations that limit direc-tors’ discretionary power when it comes to DPAdesignation; however, the director was able tofind a provision in the regulation that he feltafforded him wide discretion in this matter. Thecourt did not find that this grant of discretioncould be so broadly read. The court said that it“would be an extraordinary distortion of ordi-nary meaning to transform the discretion tocondition a decision designating a property thatmust be included or remain in the DPA becauseit meets the designation criteria … into discre-tion to do precisely the reverse.”5 To allow thediscretion to be utilized this way would meanthat his decisions would work contrary to thegoals of the regulations.

The court also found that there was notsubstantial evidence to support the director’s

decision. The court is not required to affirm theagency’s decision unless there is enough infor-mation from which an ordinary person couldcome to the same conclusion or if there is anoverwhelming amount of evidence that cutsagainst the agency’s decision. In this instance,there was no way for the director to show thateven if he had an easement that the road wouldbe built, because there was no evidence that theroad was going to be funded by anyone in thenear future. Therefore, there was nothing thatwarranted the director’s decision to excludeotherwise suitable properties from beingincluded in the DPA.

The court then addressed the rest of theCCC’s claims. At this point the court agreedwith the findings of the lower court. Regardingthe inclusion of CCC in the DPA, the courtfound that the CCC met the regulatory criteriafor classification as a DPA; therefore, the landmust be included in the DPA.

The court also found that Pizzuti’s dueprocess claim was moot. He had claimed his dueprocess right was violated because he was notallowed to negotiate for a conditioned exclusionfrom the DPA regulation, however, since thecourt already said that these exclusions were notvalid, the claim was moot.

Finally, the court looked at CCC’s regulato-ry taking claim. The court found no merit toPizzuti’s claim that he had been “deprived of all‘economically viable use’ of his land by virtue ofits inclusion,” because he had failed to supportthis claim with the required facts.6 It is alsoworth noting that Pizzuti was never looking forcompensation for his taking, but was insteadtrying to circumvent the findings of the agencyby having the court reexamine the evidenceunder the guise of a constitutional claim.

The court listed several other reasons whythis is not a taking. The first is that DPA regu-lations allow twenty-five percent of the proper-ty to be used for non-water dependent and non-industrial purposes provided that these purpos-es are not incompatible with how the waterfrontfunctions. Furthermore, the owner could not

See Designated Port, page 15

Designated Port, from page 7


Trepanier v. County of Volusia, 965 So. 2d 276(Fla. 2007).

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The beachside communities of Volusia County,Florida, including Daytona Beach, are famousfor sands hard enough to drive on. In fact, at onetime, the beaches were used to set automobileland speed records. However, after several hur-ricanes shifted the public portion of the beachcloser to private property, the landowners ob-jected to the county allowing beach goers todrive and park on the beach.

BBaacckkggrroouunnddss Endangered sea turtle and nestingshore birds share the beaches ofVolusia County with all the other sunseekers. The county protects thesespecies by setting aside a thirty-footHabitat Conservation Zone (HCZ)in which vehicles are prohibited.Prior to Hurricanes Floyd and Irenein 1999, the HCZ area was outside ofprivate property. The hurricanescaused substantial erosion, whichresulted in the county moving theHCZ farther landward onto privatelots. After the HCZ was moved, vehi-cles began driving up to and parkingon the edge of the HCZ, which wason the private lots. Hurricanes in2004 resulted in further erosion andencroachment onto the private prop-erty.

Several beachfront homeowners,Alfred Trepanier, Louis Celenza,and Zsuzsanna Celenza, filed suitagainst Volusia County. The home-owners alleged the county had ap-propriated their property for parking

and driving lanes. The homeowners also allegedtrespass based on the maintenance of the park-ing and driving lanes. Finally, the plaintiffsfiled an inverse condemnation claim based onthe county’s installation of HCZ posts on theirproperty.

In response, the county alleged that the pub-lic had a right to use the property based on thetheories of dedication, prescription, and cus-tom. The county sought an injunction to stopthe plaintiffs’ interference with the public’srights of access. The county also asked the court

See Volusia, page 10

Photograph of green sea turtle courtesy of Matt Wyatt/Marine Photobank.

Landowners Prevail in Beach Access Case


Volusia, from page 9

to declare that the county held a strip of beachin front of the Celenzas’ lot in trust for the pub-lic. The trial court denied the homeowners’request for summary judgment on those claimsand granted summary judgment to the county.

On appeal to the Fifth District Court ofAppeals, the plaintiffs claimed that the entry ofsummary judgment was in error because it wasnot clear whether the elements of dedication,prescription, and custom had been satisfied.Citing City of Daytona Beach v. Tony-Rama,1 thecounty argued that the public has the right toaccess and use the beach, including the right todrive and park on the beach. The county alsoargued that the public use right moves with thechanging coastline.

PPrreessccrriippttiioonn,, DDeeddiiccaattiioonn,, CCuussttoommOn appeal, the court looked at whether the ele-ments of dedication, prescription, and customhad been satisfied. To gain a prescriptive ease-ment in land, the access must be continuous forthe statutory period of twenty years, actual,adverse under a claim of right, and eitherknown to the owner or so open, notorious, andvisible that knowledge may be imputed to theowner.2 Additionally, the access must be incon-sistent with the rights of the landowner, other-wise it would be presumed that the use was bythe permission of the landowner. Finally, theoccupation must be a defined area with a defi-nite end. The court determined that it was notclear from the record whether the public was

continuously driving on the area of the beach atissue or that the public’s use was adverse; there-fore, there were genuine issues that precludedthe trial court’s grant of summary judgment.

Dedication is another way that the publiccould obtain a right to use private property. Toshow that there has been a dedication, thelandowner must have expressed a present inten-tion to appropriate his lands to public use. In thiscase, the beachfront homeowners argued thatthere was no clear indication that that was everdone on their beachfront. While the trial courtfound that the developers had established roads,streets, and drives for public use, the appellatecourt determined that the developers’ maps anddescriptions did not indicate a dedication, andthus there was no right of access by dedication. Ifpeople were accessing the beach, it was withoutthe homeowners’ permission.

Custom is the third way to gain publicbeach access. Custom is a practice that has theforce of law due to a common adoption of along-unvarying habit.3

First, the court noted that the FloridaSupreme Court’s decision in Tona-Rama heldthat the public may acquire a right to use thesandy area adjacent to the mean high tide lineby custom when the use of the sandy area hasbeen ancient, reasonable, without interruptionand free from dispute. The appellate court heldthat the intent of the court in Tona-Rama was toestablish a public-use right only for the beach inquestion in that case.

Next, the court looked at how acustomary right is established. Thecourt agreed with the plaintiffs thatthe elements of whether the use wasancient, reasonable, without inter-ruption and free from disputerequired a fact specific examination,which the trial court did not performbefore granting summary judgment.Furthermore, the court found thatalthough driving and parking were acustomary use of some of the beaches,this did not include all of Volusia

See Volusia, page 17

Photograph of of Ralph DePalma driving in the sand in his Packard '905' Special in 1919, courtesy of Florida Photographic Collection, State Archives of Florida.


Regulatory Taking, from page 2

to construct an access road as an extension of anexisting road to the property. In June 1998,Bailey was orally advised to cease work on theaccess road until he obtained the necessary per-mit from the Corps.

Bailey applied for an after-the-fact permitfor the access road. With his application to thecounty, Bailey submitted a Wetland Replace-ment Plan pursuant to the Minnesota WetlandConservation Act. The county forwarded theapplication to the Corps and the Corpsacknowledged that a wetlands permit was need-ed pursuant to the Clean Water Act. In Sep-tember, the Corps sent Bailey a written order tostop operations until a permit was obtained;however, Bailey continued to work on the roadto obtain county approval. In December, thecounty approved the fourteen lot subdivisionand in August 1999 the county approved theaccess road.

In August 2000, the Corps conducted its ownwetlands delineation of the property and deter-mined that a majority of the land was wetlands.In October, the Minnesota Pollution ControlAgency revoked its previously-issued waterquality certification and in June 2001, the Corpsdenied the after-the-fact permit for the accessroad. The Corps gave Bailey three options: (1)completely remove the road; (2) partiallyremove the road; or (3) mitigate. In October2001, the Corps ordered the road to be com-pletely removed.

By this time, some of the lots had been sold.When the permit was denied, Bailey boughtback four of the lots. In August 2002, Baileysued the Corps alleging that the restrictions onthe subdivision property deprived him of alleconomically beneficial and productive use ofhis land, or, in the alternative, substantiallydiminished the value of his property, resultingin a regulatory taking of his property requiringjust compensation under the Fifth Amendment.

RReegguullaattoorryy TTaakkiinnggIn order to bring a claim, the claim must bebased on a final agency decision. Initially, theCorps argued that the court should dismiss the

taking claim for lack of ripeness or readiness,because there was no final decision. The courtfound that the taking claim based on therestoration order was ripe, agreeing withBailey’s argument that the order to remove theroad was a final decision because it prohibitedaccess to the property. Furthermore, the courtheld that Bailey’s challenge of the restorationorder did not bar him from proceeding with thetaking claim.

The crux of the decision focused on whatproperty was allegedly taken by the Corps’denial of the permit. The Corps argued thatBailey could only base his taking claim on theproperty interests he held on the date of thealleged taking, and not on the interests heacquired after that date, such as the lots hebought back. The court explained that govern-ment compensation for the physical displace-ment of a private property owner from the exer-cise of a property interest is permanent. Forexample, if the takings claim was based on aphysical invasion of private property by the gov-ernment, a subsequent owner could not seekgovernment compensation.

However, the court found that no court hadpreviously considered a regulatory taking claimraised by a subsequent owner. The court reliedon the Supreme Court’s decision in FirstEnglish,1 which emphasized that a governmentactor whose regulatory actions are found to havetaken property cannot be required to obtain thefull, permanent interests in the property;because, the government retains the option ofconverting the taking into a temporary one.

The court also relied upon the SupremeCourt’s decision in Palazzolo,2 in which thecourt held that a property owner may base a tak-ings claim on the application of a regulation tohis property even if the regulation existed priorto his ownership. The Supreme Court statedthat the “claim is not barred by the mere factthat title was acquired after the effective date ofthe state-imposed restriction.”3 The courtexplained that when a government restrictionon the use of the property is so severe as to

See Regulatory Taking, page 19


Cowlitz County v. Martin, 2008 Wash. App.LEXIS 224 (Wash. Ct. App. Jan. 29, 2008).

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The Washington Court of Appeals has held thatthe Salmon Recovery Act does not afford coun-ties, cities, and tribal governments the authori-ty to condemn private property. In its holding,the court contemplated three primary ques-tions: 1) whether the Salmon Recovery Actauthorizes the state or its entities to condemnprivate property; 2) whether rehabilitation ofsalmon streams constitutes a public use, a pre-requisite for condemnation of private propertyunder state law; and 3) whether a county’sdeputy prosecuting attorney has the authorityto articulate an additional purpose for condem-nation of private property not considered by theBoard of Commissioners.

BBaacckkggrroouunnddIn 2002, Cowlitz County, Washington, appliedfor and received a $447,000 grant from theSalmon Recovery Fund to replace a culvert thatit claimed posed an impediment to fish passage.At the time the county received the grant, itheld an easement on the property for the culvertin its current state. However, the proposed cul-vert, funded by the grant from the SalmonRecovery Fund, would require an expandedeasement over the private property.

In April 2005, the county began negotiationswith the property owners to enlarge the existingeasement through voluntary purchase and sale.However, the parties never came to an agree-ment and in October 2005 the Cowlitz CountyBoard of Commissioners passed a resolutionauthorizing the county prosecuting attorney tobring a condemnation action against the prop-erty owners to acquire the enlarged easement.

The Board of Commissioners’ resolution,and subsequently the petition for condemna-tion filed on behalf of the county, stated thatthe project was necessary to remove andreplace an existing culvert that posed a barri-er to fish passage and was to be funded fromthe grant awarded to the county by the SalmonRecovery Funding Board. In addition, the res-olution and petition stated that the additionalproperty was required to complete the cul-vert replacement project, which constituted apublic use as required for condemnation ofprivate property under state law. However,upon filing the petition for condemnation, thecounty’s chief civil deputy prosecuting attor-ney alleged an additional reason for condem-nation that was not contemplated in the Boardof Commissioners’ resolution. The petitionstated that the existing culvert, in addition toposing a barrier to fish passage, was not ade-quate to handle storm stream flows under a100-year storm and the petition was necessaryto prevent road damage. The CowlitzCounty Superior Court ruled in favor of thecounty, and the property owner appealed.

SSaallmmoonn RReeccoovveerryy AAccttThe Salmon Recovery Act was enacted by theWashington State Legislature in 1999 in aneffort to improve salmonid fish runs through-out the state. The Act encourages the state tointegrate local and regional recovery activitiesprimarily by providing state funds to coun-ties, cities, and tribal governments to repairand improve fish runs that are designated ona “habitat project list.” While any project maybe placed on the habitat project list, the Actspecifically states, “no project included on ahabitat project list shall be consideredmandatory in nature and no private landown-er may be forced or coerced into participationin any respect.”1

Court Rejects Condemnation of PrivateProperty under Salmon Recovery Act

Per the express language of the SalmonRecovery Act, the court found nothing in the actgranting a county, city, or tribal government theauthority to condemn private property. Thecourt stated that the Legislature did not intendto grant any eminent domain authority throughits passage of the Salmon Recovery Act and thuscounties, cities, and tribal governments had noauthority to condemn private property underthe auspices of the Act.

PPuubblliicc UUssee RReeqquuiirreemmeennttWashington state law confers the power of emi-nent domain to counties when the condemna-tion is necessary for a public use. Procedurally,a petition for condemnation must be filed withthe county superior court followed by a trialcourt hearing after which the court must issuean order granting or denying the petition. Indetermining public use and necessity, the trialcourt must consider whether: 1) the use in ques-tion is really a public use; 2) the public interestrequires the public use; and 3) the property tobe acquired is necessary to facilitate the publicuse. In this case, the trial court granted the peti-tion for condemnation of the private propertyfinding that fish passage is a public use.

A review of the resolution passed by theCowlitz County Board of Commissionersrevealed that the board chose to proceed with theculvert replacement strictly under the SalmonRecovery Act and did not articulate any otherspecific public purpose. TheWashington Court of Appealspointed to the clear language in theSalmon Recovery Act specificallyprohibiting counties from con-demning private property for pro-jects solely funded and regulatedby the Act. In this case, the CowlitzCounty Board of Commissionersauthorized the condemnation ofthe private property solely for thepurpose of improving fish passageby means of a project funded byand under the auspices of theSalmon Recovery Act.

The court reversed the trial court’s grant forcondemnation relying on the specific languageof the Salmon Recovery Act. However, the courtpointed out that condemnation could potential-ly be granted for the project if another publicuse was determined or even still using the fishpassage as a public use so long as the Board ofCommissioners did not authorize condemna-tion under the Salmon Recovery Act.

PPrroosseeccuuttiinngg AAttttoorrnneeyy’’ss AAuutthhoorriittyy According to Washington state law, a county mustdetermine the necessity of condemnation throughthe authority of its Board of Commissioners.Here, the Cowlitz County Board of Com-missioners, in their resolution, deemed the repairof a fish passage a necessity but did not speak toany other factors in their decision to condemn theproperty. The court found that because the cul-vert’s current ability to handle storm stream flowswas not contemplated or addressed by the Boardof Commissioners, the county’s deputy prosecut-ing attorney had no authority to determine thenecessity for a condemnation and acted withoutauthority by articulating an additional purposefor replacing the culvert.

CCoonncclluussiioonnThe Washington Court of Appeals held that theRecovery Act contains express language remov-ing a county’s authority to exercise its powers of

Photograph of spawning salmon courtesy of Marine Photobank and photographer Reuven Walder.


See Salmon Recovery, page 22


Casitas Mun. Water Dist. v. United States, 76 Fed.Cl. 100 (2007).

TTeerrrraa BBoowwlliinngg,, JJ..DD..

The U.S. Court of Federal Claims ruled that ataking claim regarding a regulatory restrictionon water use is subject to the Penn Central tak-ing analysis, and not the per se physical occupa-tion taking theory.

BBaacckkggrroouunnddThe Casitas Municipal Water District operatesa water project on behalf of the U.S. Bureau ofReclamation (BOR) that supplies water toVentura County, California, for irrigation andother uses. The district’s use of the water issubject to a license from the State WaterControl Board.

In 1997, the National Marine FisheriesService (NMFS) listed the West Coast steelheadtrout as an endangered species. Because thetrout are in the Ventura River, Casitas and theBOR worked with NMFS to determine how the

habitat could be preserved and improved.NMFS eventually issued a Biological Opinionthat included revised project operating criteria,which resulted in a decrease in the amount ofwater Casitas was allowed to divert. AlthoughCasitas implemented the criteria, the districtsued the United States. The district claimedcontract damages, as well as a Fifth Amendmenttaking. The court rejected the contract damagesclaim, and the United States sought summaryjudgment on the taking claim.

TTuullaarreeThe Fifth Amendment provides, “nor shall pri-vate property be taken for public use, withoutjust compensation.” The court noted that thereis an unconditional right to compensation whenthe government 1) directly appropriates privateproperty; 2) physically occupies private proper-ty; and 3) imposes a regulatory constraint on theuse of property so severe as to deprive an ownerof all economically beneficial use. Aside fromthese categories of per se takings, a court mustuse a multi-factor balancing test outlined in

Penn Central Transportation Co.v. New York City.1 The factorsinclude: 1) the extent to whichthe regulation interferes withinvestment-backed expectations;2) the economic impact of theregulation on the claimant; and3) the character of the govern-ment’s interest.

In a recent case, Tulare LakeBasin Water Storage District v.United States,2 the court of feder-al claims ruled that a regulatoryrestriction on the use of watershould be treated as a per se phys-ical taking. In the Casitas case,the United States argued thatTulare was decided incorrectly,

Restriction on Water UseNot a Per Se Taking

Photograph of steelhead trout courtesy of U.S. Fish and Wildlife Service.


because the court focused on the finality of theplaintiffs’ loss, instead of the character of thegovernment’s action. The United States alsoargued that in a taking action that involves reg-ulatory restrictions on the use of property, thecourt should use the Penn Central analysis.Relying on another Supreme Court case, Tahoe-Sierra Preservation Council, Inc. v. Tahoe RegionalPlanning Agency,3 the United States argued thata per se taking should be recognized only whenthe government has physically invaded proper-ty or appropriated property for its own or anoth-er’s use. In Tahoe-Sierra, the court stated, “Thislongstanding distinction between acquisitionsof property for public use, on the one hand, andregulations prohibiting private uses, on theother, makes it inappropriate to treat casesinvolving physical takings as controlling prece-dents for the evaluation of a claim that there hasbeen a ‘regulatory taking,’ and vice versa.”4

The court agreed that Tahoe-Sierra wasinstructive. The court recognized that the gov-

ernment’s action in this case resulted in thediminishment of the district’s right of use,which is “… the functional equivalent of a phys-ical taking,”5 However, the court found thatTahoe-Sierra “compels us to respect the distinc-tion between a government takeover of property(either by physical invasion or by directing theproperty’s use to its own needs) and govern-ment restraints on an owner’s use of that prop-erty.”6 The court granted the United States’motion for partial summary judgment.

EEnnddnnootteess1. 438 U.S. 104 (U.S. 1978).2. 49 Fed. Cl. 313 ( 2001).3. 535 U.S. 302 (U.S. 2002). 4. Id. at 323-25. 5. Casitas Mun. Water Dist. v. United States, 76

Fed. Cl. 100, 105 (2007).6. Id. at 106.

Designated Port, from page 8

establish a “categorical taking” based on thedeprivation of all economically viable use. Evenif there was a diminution in market value of theCCC, it was not serious enough to warrant com-pensation for a taking. The court did not agreewith the plaintiff that there was a taking basedon Penn Central, a case that outlines factors todetermine if regulation has gone “too far” andbecome an unconstitutional taking. The CCC’sclaim does not satisfy any of the guiding factorsused in Penn Central. These factors include: “theeconomic impact of the regulation; the extent towhich it has interfered with the owner’s ‘dis-tinct investment-backed expectations’; and thecharacter of the government actions.”7 Forexample, the owner had no investment-backedexpectation because the DPA regulation was ineffect when he bought the property. Lastly, thecourt mentions that there was no “physical inva-sion” of the property; therefore, the governmentaction involved here does not have the characterwhich would seem to indicate a taking. With all

of these considerations, the court found it prop-er to deny the petitioner’s takings claim.

CCoonncclluussiioonnThe court concluded that there was no taking inthis case and that all of the areas that met therequirements for DPAs must be classified assuch. This is a decision that is consistent withthe regulation and promotes the goals which theOCZM was meant to promulgate.

EEnnddnnootteess1. United States Gypsum Company v. Executive

Office of Environmental Affairs, 867 N.E.2d764, 767 (Mass.App.Ct. June 4, 2007).

2. Id.3. Id. at 768.4. Id. at 771 quoting 301 MASS. CODE REGS. §

25.05(2) (1994).5. Id. at 772.6. Id. at 776-77.7. Id. at 777-78.


Smiley v. South Carolina Dept. of Health andEnvironmental Control, 2007 S.C. LEXIS 292(S.C. July 30, 2007).

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The Supreme Court of South Carolina unani-mously found that a permit to remove sand froma public beach is an imminent injury, and heldthat a recreational user of a public beach hadstanding to contest the sand removal permit.

BBaacckkggrroouunnddJames Smiley enjoys using a public beach inSouth Carolina for recreational purposes. He ispartially disabled in both legs and uses the flathard public beach for rehabilitation and jogging,as well as nature-watching. He contested a stateagency decision that gave a private company,Wild Dunes, the right to remove sand from thisbeach. The “beach sand scraping” permit allowsthe company to take 25,000 cubic yards of sandeach month from November through April forfive years. Smiley alleged that the entrance ofheavy equipment onto the public beach and theexcavation would make it impossible to jog in thearea and reduce his enjoyment of the beach.After Smiley contested the agency’s decision, theadministrative law judge, the appellate panel,and the circuit and appellate courts found that hedid not have standing, which is the right to pur-sue a claim in court, to challenge the permit.

SSttaannddiinnggCiting Lujan v. Defenders of Wildlife,2 SouthCarolina Supreme Court noted that standingrequires three elements: 1) the plaintiff musthave suffered an “injury in fact” which is con-crete and particularized, meaning that theplaintiff is affected in a personal and individu-alized way, and actual or imminent, meaningthat the injury cannot be conjectural or hypo-

thetical 2) there must be a causal connectionbetween the injury and the conduct complainedof, and 3) it must be likely that the injury will be“redressed by a favorable decision.”2 In 2005,the South Carolina Court of Appeals found thatSmiley did not have standing because he hadnot met the first requirement of the standingtest in Lujan. The court focused on the fact thatthough the permit had been issued, no sand hadbeen yet excavated, so there was no actualinjury. Additionally, the appellate court foundthat Smiley would not suffer an “injury in fact”even if sand were to be excavated, due to thepermit’s temporary nature. Smiley’s joggingroute would simply have a temporary detour.The court found that sand excavation does notsubstantially impair the public interest, and it iswithin the state’s policy of preserving andrestoring its beaches.

The South Carolina Supreme Court dis-agreed, finding that Smiley met the first stand-ing requirement. The court first noted that theinjury may be actual or imminent.3 There is noreason to wait until the injury is actually inflict-ed. Here, the gravity of a permit to excavate somuch sand is an imminent injury. In fact, thecourt notes that up to ten acres of beach permonth would be affected if the maximumamount of sand were extracted.

Next, the court examined the appellatecourt’s determination that the temporary natureof the permit would not result in an “injury infact” to Smiley. The court noted that there is nolegal distinction for temporary and permanentinjuries; temporary or minor ones are stillallowed to be vindicated and allow someone adirect stake in the outcome. Furthermore, theagency had not submitted any evidence that theinjury from the winter excavation will be onlytemporary. An interference with Smiley’s enjoy-ment of the beach and his inability to use it forat least those six months gives Smiley a directstake in the permitting decision.

Permit to Remove Sand Is anImminent Injury to Beachgoers


County beaches and should be decided on a caseby case basis.

Finally, the court had to decide whether thepublic’s use shifted with the changing shoreline.Erosion is a fact of coastal living, which theFlorida Constitution and common law rulesacknowledge. The Florida courts have deter-mined that the slow seaward shift of sand, caus-es the mean high tide line to shift, resulting in aloss of land to the landowner. The court agreedwith the county’s argument that if the change inthe mean high water mark was the result of ero-sion, then the public’s right of access would bepreserved under the public trust doctrine. Inthis case, however, it appeared as if the changein the beach was the result of avulsion ratherthan erosion. Avulsion is the sudden removal ofland through a storm or some other event. Thecourt found that when the land is avulsed, or sochanged that there is a difference in the land-scape after one storm event, the boundaries arenot subject to change, and private landownerswould not lose their beach.4 It was not certainwhether the areas subject to the public right bycustom would move as a result of avulsion. The

court reversed the summary judgment in favorof the county and sent the question back to thetrial court to determine if the public’s right toaccess the beach migrates with avulsion as itdoes with erosion.

CCoonncclluussiioonn The court reversed the trial court’s grant ofsummary judgment, finding that the generalissues of material fact had not been resolved.The appellate court did agree with the trialcourt that if the public has a right to access thebeach by custom, there is no taking and the landowners are not entitled to money for the public’saccess of the beach.

EEnnddnnootteess1. 294 So. 2d 79 (Fla. 1997).2. Trepanier v. County of Volusia, 965 So. 2d 276,

284 (Fla. 2007).3. Black’s Law Dictionary 169 (2d Pocket ed.

2001)4. In re City of Buffalo, 99 N.E. 850, 852 (NY

1912).

Volusia, from page 10

CCoonncclluussiioonnGiving Smiley standing toappear in court, the SouthCarolina Supreme Courtdirected the administra-tive law judge to proceedwith the case and allowSmiley a chance to contestthe agency’s permit.

EEnnddnnootteess1. Lujan v. Defenders of

Wildlife, 504 U.S. 555,560-561 (1992).

2. Smiley v. S.C. Dep’t ofHealth & Envtl. Control,374 S.C. 326, 329 (S.C.2007).

3. Lujan, 560-561. Photograph of public beach courtesy of ©Nova Development Corp.


Banks v. United States, 78 Fed. Cl. 603 (Ct. Cl.2007).

TTeerrrraa BBoowwlliinngg,, JJ..DD..

In a takings case arising from coastal erosion onLake Michigan caused by an Army Corps ofEngineers project, the U.S. Court of FederalClaims has ruled that the government is respon-sible for 30 percent of each plaintiff ’s propertyloss above the mean high water mark.

BBaacckkggrroouunnddBetween 1950 and 1989, the Corps performedconstruction and maintenance on harbor jet-ties around the mouth of St. Joseph River toaccommodate commercial shipping. After thelakeshore south of the jetties began to erode,the Corps began a beach renourishment pro-gram in the 1970s; however, the project provedineffective.

In 1999, property owners affected by the ero-sion filed suit against the United States, alleg-ing that the Corps’ activities caused erosion oftheir shoreline property and resulted in a takingunder the Fifth Amendment. After the trial onliability in June 2007, the U.S. Court of FederalClaims had to consider whether the govern-ment’s renourishment efforts compensated forthe effects of the jetties enough to show that theerosion was not attributable to the government.

LLiiaabbiilliittyyThe court first looked at whether the jettiesaffected plaintiffs’ properties. The court foundthat the plaintiffs’ properties were affected bythe jetties, citing a 1958 study as well as Corpsreports attributing 30 percent of the total ero-sion to the jetties.

To determine whether the renourishmentproject was effective, the court looked at theadequacy of nourishment material used by the

Corps, the sediment transport rate, and theeffective placement of nourishment material.The court first found that the plaintiffs failed toprove that their properties were located on acohesive lake bottom, meaning that the proper-ty damage would not be analyzed as permanentand irreversible. Next, the court found that thesediment used by the Corps in the renourish-ment process was the inappropriate size andwas ineffective. Therefore, that portion of therenourishment program was not credited asmitigation to the Corps. The court next lookedat the sediment transport rate, including the netlittoral drift and the various factors affectingthe net southerly littoral drift, to determine howmuch sediment was affected by the jetties.Finally, in looking at the effective placement ofthe nourishment material, the court found “by apreponderance of credible evidence” most of thenourishment was placed in a way that wouldreplenish the plaintiffs’ property.

The court considered additional argumentsregarding the Corps’ liability. The plaintiffsargued that revetments constructed by theMichigan Department of Transportation andChesapeake and Ohio Railway Company to stoperosion resulted in further erosion to their prop-erty and was attributable to the Corps’ restora-tion project. The court found that the plaintiffsfailed to prove that the Corps caused directinjury to the plaintiffs through the building ofthe revetments. Although the plaintiffs alsoargued that the impermeable nature of the jet-ties contributed to erosion, the court found thatthe property owners failed to prove that the jet-ties were impermeable. Finally, the plaintiffsargued that although Lake Michigan is lower-ing, the plaintiffs would still suffer erosionbecause the lakebed was lowering due to sanddeprivation. The court noted that owners failedto prove that the lowering of the water level wasdue to human intervention.

Corps Liable for ShorelineErosion on Lake Michigan

HHoollddiinnggssThrough exhaustive testimony and reports, thecourt found that the Corps did not mitigate ero-sion that it caused by dumping dredged sandinto deep water before 1970. The court conclud-ed that the Corps was responsible for 30 percentof the unmitigated erosion above the high watermark occurring after each owner’s acquisitionof the property from 1950 to 1970. The courtthen turned to liability for erosion caused after1970.

While the court found that the court hadmitigated erosion since 1970, it also found thatthe coarse material it used was not effective formitigation. Therefore, the court was liable fordamages of for any portion of 30 percent of eachplaintiff ’s total erosion above the high water

mark since 1970 and after each owner’s acquisi-tion of the property. Additionally, the Corps isliable for 30 percent of all reasonably foreseeablefuture loss. Finally, the court held that the Corpswas liable to plaintiffs with property at thenorthernmost end of the plaintiffs’ zone.Because the property in this area was found to bepermanent and irreversible, the Corps was liablefor 30 percent of total erosion above the ordinaryhigh water mark that occurred after plaintiff ’sacquisition of the property after 1950, as well asany reasonably foreseeable future loss.

CCoonncclluussiioonnThe case will next move to the damages phase,in which the government will determine theappropriate payments for each plaintiff.


result in a taking, the owner is suing for his lossof use, not for the loss of subsequent owners.4

The court further explained that a regulato-ry taking can never be viewed as a permanentrestriction on the land since the governmentmay choose to stop regulating the use of theproperty at any time. As a result, the court heldthat whoever owns the property while the regu-latory taking continues is entitled to compensa-tion. The court reasoned that the right to useproperty runs with the land. If a current owneris compensated for the restricted use of his land,a subsequent owner of the restricted land wouldbe similarly entitled to compensation. Con-sequently, the court held that Bailey could seekcompensation for the alleged taking of his prop-erty interests in five lots, one which he continu-ously owned and four that he had repurchasedafter the permit denial.

CCoonncclluussiioonnA property owner who owned lakeshore proper-ty which he converted to subdivision lotsbrought this action to contest the denial of anafter-the-fact permit and order of the Corps,pursuant to wetlands regulation, to remove anaccess road he had constructed for his propertyamidst Corps warnings to cease construction

operations. The plaintiff argued that the regula-tion of his property, which left the propertywithout a means of access, rendered it void ofany economic value. The Corps argued that theplaintiff could not assert a taking claim basedon his property interests in the reacquired lotsbecause a taking claim should be based on prop-erty interests at the time of the alleged taking.However, the court held that rule was onlyapplicable to physical permanent takings. Thecourt held that current owners, as well as subse-quent owners, may assert a regulatory takingclaim and seek compensation. Therefore Baileycould assert a regulatory taking claim for fourlots which he repurchased and one lot for whichhe continuously held title.

EEnnddnnootteess1. First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S.304 (1987).

2. Palazzolo v. Rhode Island, 533 U.S. 606(2001).

3. Id. at 630.4. Bailey v. United States, 2007 WL 2317493

(Ct. Fed. Cls. Aug. 10, 2007). (Emphasis inthe opinion).

Regulatory Taking, from page 11


the ability to grant a license to the plaintiffs forany of tidal lands, submerged lands, or sur-rounding waters. Furthermore, the plaintiffsfreely admitted that the government restrictionsregarding the refuge only applied to the tidallands, submerged lands, and surroundingwaters to which the plaintiffs had no claim.Thus, the plaintiffs had not lost value in theirlicenses by virtue of the government restrictionon commercial fishing surrounding their prop-erty interest. Since there had been no restric-tions regarding the emergent land, the govern-ment had not imposed any restrictions on theplaintiffs protected property rights.

What had occurred was a frustration ofpurpose of the commercial fishing licenses, asopposed to a Fifth Amendment taking. Thecourt examined the Supreme Court case OmniaCommercial Co. v. United States, which heldthat the plaintiffs had suffered a frustration ofpurpose, but not a taking.6 In Omnia, the plain-tiff had a large, long-term contract with a steelcompany at a low fixed price. The governmentrequisitioned all the steel from that companythroughout 1918 in order to supply thedemands for World War I and ordered the com-pany not to fulfill any of its contractual oblig-ations.7 The Supreme Court ruled that the lossof the contract was merely consequential andthe Fifth Amendment takings clause did notprovide a remedy. The Court subsequentlydenied the plaintiff ’s takings clause claimholding that frustration of purpose and appro-priation for public use are completely differ-ent. Applying Omnia, the court found that thepurpose of the plaintiffs’ commercial fishinglicenses had been frustrated by the closure ofthe surrounding waters to commercial fishing.However, the governmental action did notappropriate the rights which those licensesgranted. Therefore, the court found that thegovernment could not be liable under theplaintiffs takings claim.

The plaintiffs relied on Cienega Gardens v.United States in an attempt to refute the claimthat the government’s actions represented afrustration of purpose rather than a constitu-

tional taking. In Cienega Gardens the FederalCircuit Court abandoned the principles setforth in Omnia, because the government actionspecifically targeted the plaintiff ’s contractualrights.8 In the present case, the plaintiffs intro-duced several documents which they claimeddemonstrated that the government action increating the refuge was intended to nullify theirlicenses. The court rejected this argument stat-ing that while in Cienega Gardens the govern-mental actions directly affected the contracts,in Omnia and this case the actions only regulat-ed the subject matter of the contracts, steel, andcommercial fishing operations respectively.

CCoonncclluussiioonnThe United States Court of Federal Claimsgranted the United States’ motion to dismiss forfailure to state a claim holding that the designa-tion and closure of the Palmyra refuge frustrat-ed the purpose of the plaintiffs’ licenses but didnot violate the takings clause of the FifthAmendment because the plaintiff was unable toassert a protected cognizable property interest.Furthermore, the court concluded that even ifthe plaintiffs’ licenses constituted a protectedproperty interest, the plaintiffs were unable to“allege that the government’s designation of thePalmyra National Wildlife Refuge and closureof the refuge to commercial fishing directly reg-ulated operations under those licenses.”9

EEnnddnnootteess1. Palmyra Pac. Seafoods, L.L.C. v. U.S., 80 Fed.

Cl. 228 (2008).2. U.S. v. Fullard-Leo, 331 U.S. 256 (1947). 3. U.S. Const amend. V.4. Palmyra, 80 Fed. Cl. at 230 (citing Colvin

Cattle Co. v. U.S., 468 F.3d 803, 806 (Fed. Cir.2006)).

5. Colvin Cattle Co., 468 F.3d at 808. 6. Omnia Commercial Co. v. U.S., 261 U.S. 502

(1923).7. Id. 8. Cienega Gardens v. U.S., 503 F.3d 1266 (Fed.

Cir. 2007).9. Palmyra, 80 Fed. Cl. at 236.

Commerical Fishing, from page 4


By Will Wilkins

In prior articles in this series, we discussedcopyrights in general as well as the more specif-ic issue of when and how you can use someoneelse’s copyrighted work. In this article, I willcontinue to look a bit more specifically at copy-right protection and how you can protect yourown creative works.

In other words, what do you need to do toprotect a book, article, website, etc. you havecreated? As I discussed in the last article, thereare certainly times when other folks can useyour work without your permission but thereare also times when use by another would con-stitute copyright infringement and we’re goingto discuss ways of protecting against the latter(infringing uses) in this article.

Let’s take a brief step back here at the outsetand review what exactly can be copyrighted.Copyright protection exits in this country fororiginal works of authorship which have been placedin tangible form for a limited period of time. Thefirst requirement, thus, isthat the work must beoriginal – that is, it mustbe the work of the creator(not your neighbor) and itmust be, at least in abasic sense, creative.Second, the work must beone of the types of worksdecreed in the copyrightstatutes to fall under theprotection of copyrightwhich includes suchthings as: books, articles,plays, music, and artwork.Finally, the work must bein tangible form which

means somewhere other than rattling around inthe creator’s head. As long as the work is onpaper, computer, or any other type of recodingmedia it easily meets this requirement.

What else is required technically to create acopyrighted work? Nothing at all. Short article,right? Basic protection is, in fact, that simple. Ifa work is an original “work” and in tangibleform, it is protected by federal copyright law.However, the story does not necessarily endthere. There are several additional steps you asthe creator can take to protect your works.

One method of enhancing copyright protec-tion is by registering the work with the Libraryof Congress. Registration is relatively inexpen-sive and simple. It involves filing in a form andmailing the form, a check with the filing fee,and a sample of the work to the Library ofCongress. Registration is required before copy-right enforcement in federal court and, once acase is in court, provides several legal advan-tages including shifting the burden of proof and

Protecting YourCopyrighted Works©© ®®

Photograph of west front of the Library of Congress courtesy of The Library of Congress Historic American Engineering Record.

See Copyright, page 22


the availability of additional damages. So, regis-tration can be a valuable step in protecting yourcopyright.

An even simpler method of protection is touse a copyright notice. The copyright noticewas once required on works claiming protec-tion but this is no longer the case. Use of thenotice on works, however, has a tremendousdeterrent effect. People see the notice and think“well, that work is protected, I’ll look elsewherefor materials for my website.” The form of thenotice can be one of the following: [©yourname, date] or [copyright, your name, date].For example, on this article I could mark it “©Will Wilkins, 2008.” Notice is a great andcheap way of protecting copyrighted works.

Another deterrent-type protection is simplybeing careful with what you do with your worksand how you use them, especially works usedon the internet. If you do not want your workcopied from your website, protect the work asbest you can. With photos, use a low-resolutionimage that looks good on the website but doesnot print well. Watermarks may also be helpful.For textual works, PDFs may provide protec-tion over more easily editable formats.

Of course, there are times when nothingyou can do will deter a determined copyrightinfringer. So, what should a copyright owner dowhen his work has been used without permis-sion or legal justification (fair use, etc.)?

The answer, of course, is check with hisattorney. Strategies often employed includedemand letters and lawsuits. If the infringe-ment is online, a simple approach is to notifythe infringer’s website hosting site asking them

to shut down the infringing website. This proce-dure, created under the Digital MillenniumCopyright Act, is outlined on the Library ofCongress’ copyright website.

The good news is that simple measures suchas registration and the use of copyright noticegenerally deter most infringement. These stepsare inexpensive and effective.

In the next issue, we will turn toward theseemingly simple question of: who owns thatcopyright? Stay tuned.

eminent domain under the auspices of the Act.The court also found that the restoration orimprovement of salmonid fish runs did not con-stitute a public use as articulated by statelaw and prior jurisprudence. Finally, the courtheld that the county’s deputy prosecuting attor-ney acted outside the scope of his authority by

alleging an additional purpose for replacing theculvert in the petition for condemnation thatwas not contemplated by the Cowlitz CountyBoard of Commissioners.

EEnnddnnootteess1. WASH. REV. CODE § 77.85.050(1)(a).

Copyright, from page 21

Salmon Recovery, from page 13

How to ProtectYour Copyright

A checklist . . .

We learned that to receive copyright pro-tection a work merely needs to be a pro-tected type of work, original, and in tangi-ble form. To provide additional protection,take these steps:

• Register your work with the Library ofCongress.

• Use a copyright notice.• Use care when publishing your works-

don’t make it easy on copyrightinfringers!


The world’s largest marine reserve has been established by the Pacific Island nation of Kiribati.The area covers 410,500 square kilometers and includes 120 species of coral reefs and over 500species of fish, as well as sea bird nesting sites. Theisland nation, which is located halfway between Fijiand Hawaii, received a boat donated by Australia topatrol the area.

Citing an 1818 survey, the Georgia state legislaturepassed a resolution to restore the boundary linebetween Georgia and Tennessee to the 35th parallel.The current border runs below the Tennessee Riverand a shift would give Georgia a portion of the river.The resolution was passed in the wake of recent waterrights issues in Georgia. If the Tennessee state govern-ment does not approve the change, Georgia could takeits case to the United States Supreme Court.

An Australian fisherman swam nine miles from his capsized boat to shore. After the fisherman wasdiscovered, authorities were dispatched to find two other crewmembers. A helicopter was able torescue one crewmember, who had been clinging to an ice cooler to remain afloat. The third crew-man had separated from the ice cooler in the middle of the night and there was no sign of him.

A Navy airlift saved the day for a 14-year old girl whose appendix ruptured while she was aboarda cruise with her family. When the cruise ship sent out a distress call, the USS Ronald Reagan sent

a helicopter to airlift the teenagerback to its ship, which had the near-est hospital facility.

In Hawaii, neighbors are feuding overwhether short-term rentals should beallowed in residential areas. Someresidents are fed up with the noisetourists bring to their neighborhoodsand worry that the practice destroysthe sense of community. Local law-makers are considering proposals toeliminate permits that allow short-term vacation rentals in residentialareas, the AP says.

Photograph of starfish on coral formation courtesy of ©NovaDevelopment Corps.

Photograph of Hawaii residential area courtesy of ©Nova Development Corps.

Sea Grant Law CenterKinard Hall, Wing E, Room 262P.O. Box 1848University, MS 38677-1848

THE SANDBAR

THE SANDBAR is a result of research sponsored inp a r t b y t h e N a t i o n a l O c e a n i c a n dAtmospheric Administration, U.S. Department ofCommerce, under Grant Number NA16RG2258,the Sea Grant Law Center, Mississippi LawResearch Institute, and University of MississippiLaw Center. The U.S. Government and the SeaGrant College Program are authorized to pro-duce and distribute reprints notwithstandingany copyright notation that may appear hereon.This newsletter was prepared by the Sea GrantLaw Center under award NA06OAR4170078from NOAA, U.S. Department of Commerce. Thestatements, findings, conclusions, and recommen-dations are those of the author(s) and do not nec-essarily reflect the views of the Sea Grant LawCenter or the U.S. Department of Commerce.

The University of Mississippicomplies with all applicablelaws regarding affirmativeaction and equal opportunityin all its activities and pro-grams and does not discrimi-

nate against anyone protected by law because ofage, creed, color, national origin, race, religion,sex, handicap, veteran or other status.

MASGP 08-004-01 April, 2008

Editor: Terra Bowling, J.D.

Publication Design: Waurene Roberson

Research Associates:Margaret EngfingerSurya GunasekaraAlicia SchaffnerSarah SpigenerSara Wilkinson

Contributors:Lynda LancasterJoseph RosenblumWill Wilkins

THE SANDBAR is a quarterlypublication reporting onlegal issues affecting the U.S.oceans and coasts. Its goal isto increase awareness andunderstanding of c o a s t a lp r o b l e m s a n d issues. Tosubscribe to THE SANDBAR,

contact: the Sea Grant Law Center, Kinard Hall, WingE, Room 262, P.O. Box 1848, University, MS, 38677-1848, phone: (662) 915-7775, or contact us via e-mail at:[email protected] . We welcome suggestions for top-ics you would like to see covered in THE SANDBAR.

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