On June 30, 2011, the United States Court of Appeals for the Federal Circuit upheld the decision of the lower court to dismiss a complaint seeking to prevent further releases of fresh water from Lake Okeechobee to the St. Lucie estuary. Appellants John R. Mildenberger, et al. sued the United States in the United States Court of Federal Claims. The basis of their claims was that these fresh water releases resulted in an alleged taking of their riparian and upland property rights. The case is Mildenberger v. United States, 06-CV-760, No. 2010-5084 (Fed. Cir. 2003).
The Plaintiffs are twenty-two individuals who own property along the St. Lucie River and one individual who owns land abutting the St. Lucie Canal. They contend that for many years the release of lake-regulation discharges through the St. Lucie Canal causes serious damage to fishing and boating in the St. Lucie estuary.
On November 13, 2006, the Plaintiffs filed a complaint in the U.S. Court of Federal Claims seeking compensation of approximately fifty million dollars for the Government’s “intentional and repeated discharge of pollutants” into the St. Lucie River and estuary system. The complaint alleges that releases of water from Lake Okeechobee by the U.S. Army Corps of Engineers took Plaintiffs’ “riparian right to use and enjoy the water in the St. Lucie River free from pollution,” including their rights to swim, boat, fish, and use the water for recreation. Additionally, the complaint alleges that the Army Corps’ releases of large volumes of fresh water into the brackish water of the estuary “operate as a pollutant” because “[f]resh water releases destroy the delicate balance between salt and fresh water so critical to a tidal estuary.”
The Court of Federal Claims granted the Government’s motion to dismiss, ruling that Plaintiffs’ suit was filed outside the six-year statute of limitations applicable to claims for compensation under the Tucker Act, 28 U.S.C. § 1491. The Court of Federal Claims also granted summary judgment for the Government on alternative grounds. The trial court first held that Plaintiffs’ alleged riparian rights of fishing, swimming, boating, and recreation were not compensable rights because those rights are held in common with the public. Additionally, the court rejected Plaintiffs’ asserted right to observe wildlife as unsupported by any legal authority.
The Court of Appeals affirmed the decision of the lower court. The appellate court held that Plaintiffs’ alleged takings claims were barred by the statute of limitations in 28 U.S.C. § 2501 and Plaintiffs failed to establish that Florida law recognizes compensable property interests in the riparian rights they allege were injured by the Government.
The full opinion of the case can be found here.
Florida Environmental and Water Law 