Mike Mehaffy v. United States

NOTE: This disposition is non-precedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MIKE MEHAFFY,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2012-5069
__________________________
Appeal from the United States Court of Federal
Claims in Case No. 09-CV-860, Judge Christine O.C.
Miller.
_________________________
Decided: December 10, 2012
_________________________
BRUCE B. TIDWELL, Friday, Eldredge & Clark, LLP, of
Little Rock, Arkansas, for plaintiff-appellant.
M ATTHEW LITTLETON , Attorney, Appellate Section,
Environment & Natural Resources Division, United
States Department of Justice, of Washington, DC, for
defendant-appellee. With him on the brief was IGNACIA S.
M ORENO , Assistant Attorney General.
__________________________

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MEHAFFY v. US 2
Before RADER, Chief Judge, LOURIE and WALLACH , Circuit
Judges.
RADER, Chief Judge.
In this case, Appellant Mike Mehaffy seeks compensa-
tion from the government, claiming a taking of his real
property in violation of the Fifth Amendment to the
United States Constitution. Mr. Mehaffy’s claim arises
from a decision by the United States Army Corps of
Engineers (the “Corps”) denying Mr. Mehaffy’s fill permit
application under section 404 of the Clean Water Act, 33
U.S.C. § 1344. The United States Court of Federal
Claims granted summary judgment for the government
on the ground that Mr. Mehaffy had not met the require-
ments for a regulatory taking under Penn Central Trans-
portation Co. v. City of New York, 438 U.S. 104 (1978)
(“Penn Central”). This court affirms the decision of the
trial court.
I.
The land subject to this litigation is a seventy-three
acre parcel bordering the Arkansas River in North Little
Rock, Arkansas. In 1970, the property was owned by
Nomikano, Inc. (“Nomikano”), an Arkansas corporation
holding assets for the benefit of the Mehaffy family and
whose business was conducted by Mr. Mehaffy’s father,
the Honorable Pat Mehaffy.
On March 2, 1970, the United States purchased a
flowage easement (“the easement”) from Nomikano that
covered roughly forty-nine acres of the subject property.
The easement was purchased as part of a congressionally
authorized effort to construct locks and dams along the
Arkansas River. It gave the government the right to,
among other things, “permanently overflow, flood and
submerge the land lying below elevation 249, [mean sea

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MEHAFFY v. US 3
level], and to occasionally overflow, flood, and submerge
the land lying above elevation 249, m.s.l., in connection
with the operation and maintenance of Lock and Dam No.
7, Arkansas River project.” Mehaffy v. United States, 102
Fed. Cl. 755, 757 (2012).
However, the easement also contained a reservation
of certain rights. According to the easement deed, Nomi-
kano reserved for itself, its successors, and assigns,
all such rights and privileges as may be used and
enjoyed without interfering with [the govern-
ment’s purpose in obtaining the easement]. In-
cluded among those rights specifically reserved to
the landowner, its successors and assigns, is the
right to place fill in the area of said tract and to
place structures on said fill above elevation 252
feet, m.s.l. Notwithstanding, the above exception
does not permit the placing of structures for hu-
man habitation thereon.
Id. This reservation of rights was included in the ease-
ment deed at the request of Mr. Mehaffy’s father.
After the government purchased the easement, Con-
gress enacted the Clean Water Act of 1972, Pub. L. No.
95-217, 91 Stat. 15656 (as amended at 33 U.S.C. §§ 1251–
1387 (2006)) (the “CWA”). Section 404 of the CWA, codi-
fied at 33 U.S.C. § 1344, “establishes a program for the
regulation of fill activities involving waters of the United
States. The basic premise of the program is that no
discharge of dredged or fill material into waters of the
United States is permitted if a practicable alternative
exists that is less damaging to the environment.” Nor-
man v. United States, 429 F.3d 1081, 1086 n.1 (Fed. Cir.
2005) (internal quotations omitted). On October 10, 1980,
the Corps notified Nomikano and its officers (including
Mr. Mehaffy), that the property and the easement were

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MEHAFFY v. US 4
subject to the terms of the CWA. The letter specifically
stated the easement, by itself, “is not sufficient to author-
ize work requiring authorization under [the CWA],” and
thus a section 404 permit would be required should
Nomikano desire to place fill material in any of the wet-
lands located on the property. Mehaffy, 102 Fed. Cl. at
758.
In 1987, Nomikano was dissolved, its assets liqui-
dated, and the property sold to Mehaffy Construction
Company Inc. (“MCC”). While Mr. Mehaffy was the main
executive for MCC at that time, the sale was a “negoti-
ated, arm’s-length transaction for $75,000” which was
then the fair market value of the land. Id. In May 2000,
the property was sold a second time. Mr. Mehaffy had
relinquished managerial control of MCC by that time, and
MCC sold the property to him for $10.00.
In 2004, the Mehaffys began to develop the property.
The Corps identified wetland-delineated areas on the
subject property, and MCC cleared and leveled approxi-
mately nine to ten acres of the uplands portion of the
subject property. The Mehaffys then used this cleared
land as a storage yard for their construction business.
In September 2006, Mr. Mehaffy filed an application
for a section 404 permit to fill approximately forty-eight
acres of wetlands on the subject property. The application
stated the purpose of the permit was to exercise the right
granted in the 1970 easement. After several months of
communication between the Corps and Mr. Mehaffy, a
period of public comment, and input from several federal
and state governmental agencies, the Corps denied Mr.
Mehaffy’s permit application. The Corps emphasized that
Mr. Mehaffy had failed to demonstrate that his proposed
placement of 230,000 cubic yards of fill within a desig-
nated floodway and wetland “did not have any practicable

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MEHAFFY v. US 5
alternatives which would have less adverse environ-
mental impacts.” Id. at 761.
The Corps informed Mr. Mehaffy of his agency appeal
options, and he subsequently appealed the permit denial
through the Corps’ administrative appeals process. The
Corps ultimately denied his appeal, and, as the trial court
found, this denial represented the final Corps decision
regarding Mr. Mehaffy’s section 404 permit application.
Id.
Mr. Mehaffy then filed suit in the United States Court
of Federal Claims. He claimed the Corps’ refusal to
provide him with a permit to fill the property “in accor-
dance with the reservation contained in the Easement
Deed” constituted a compensable partial regulatory
taking of Mehaffy’s land. App. 32. Following a period of
discovery and an unsuccessful motion to dismiss, the
government moved for summary judgment based on the
parties’ Joint Stipulation of Facts.
The trial court granted the government’s motion. It
analyzed the facts using the Penn Central framework and
concluded that Mr. Mehaffy could not show he had a
reasonable investment-backed expectation to fill the
property, nor that the government action was retroactive
or targeted against him specifically. [JA 14] Mr. Me-
haffy appealed, and this court has jurisdiction under 28
U.S.C. § 1295(a).
II.
This court reviews the Court of Federal Claims’ grant
of summary judgment without deference. Schooner
Harbor Ventures, Inc. v. United States, 569 F.3d 1359,
1362 (Fed. Cir. 2009). “Summary judgment is appropriate
when, making all reasonable inferences in favor of the
non-moving party, there exists no genuine issue of mate-

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MEHAFFY v. US 6
rial fact for trial.” Id. (citing Ct. Fed. Cl. R. 56(c)(1); Am.
Pelagic Fishing Co. v. United States, 379 F.3d 1363, 1370–
71 (Fed. Cir. 2004)).
According to the Fifth Amendment, private property
shall not “be taken for public use, without just compensa-
tion.” U.S. Const. amend. V. For years, courts have
distinguished between government action that physically
takes control or ownership of private property and statu-
tory and regulatory regimes that impose limits on an
owner’s ability to use his property. See Tahoe-Sierra Pres.
Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S.
302, 323–24 (2002) (noting the rules for determining a
physical taking are different than the rules for determin-
ing a regulatory taking). Here, Mr. Mehaffy claims the
Corps’ refusal to grant him a fill permit is a compensable
partial regulatory taking of his land. App. 32.
There is no question that “while property may be
regulated to a certain extent, if regulation goes too far it
will be recognized as a taking.” Pennsylvania Coal Co. v.
Mahon, 260 U.S. 393, 415 (1922). When determining
whether a particular regulation has gone too far, this
court considers “(1) the character of the government
action, (2) the extent to which the regulation interferes
with distinct, investment-backed expectations, and (3) the
economic impact of the regulation.” Good v. United
States, 189 F.3d 1355, 1360 (Fed. Cir. 1999) (citing Penn
Central, 438 U.S. at 124–25). While evaluation of the
Penn Central factors “is essentially an ‘ad hoc, factual’
inquiry,” it is possible for a single factor to have such force
that it disposes of the whole takings claim. Ruckelshaus
v. Monsanto Co. 467 U.S. 986, 1005 (1984) (quoting Kaiser
Aetna v. United States, 444 U.S. 164, 175 (1979)); see also
Norman v. United States, 429 F.3d 1081, 1094 (Fed. Cir.
2005) (noting that the absence of a single Penn Central
factor can be dispositive); Good, 189 F.3d at 1360 (affirm-

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MEHAFFY v. US 7
ing a grant of summary judgment for the government
solely on the lack of reasonable investment-backed expec-
tations); Golden Pac. Bankcorp v. United States, 15 F.3d
1066, 1074 (Fed. Cir. 1994) (concluding the absence of
reasonable investment-backed expectations disposed of
the takings claim).
Turning to the reasonable investment-backed expec-
tations prong of the Penn Central analysis, the first task
is determining the relevant date for assessing Mr. Me-
haffy’s expectations. Mr. Mehaffy asserts the relevant
date is prior to the passage of the CWA. He notes that he
was the Secretary-Treasurer of Nomikano during the
negotiation of the easement with the Corps, that he was
involved in the negotiations of the easement, and that he
signed the easement deed in his capacity as an officer of
Nomikano. He concludes these facts show he had an
expectation for future development of the property before
enactment of the CWA.
However, reasonable investment-backed expectations
are measured at the time the claimant acquires the
property. See Palazzolo v. Rhode Island, 533 U.S. 606,
633 (2001) (O’Connor, J., concurring); Appolo Fuels,Inc. v.
United States, 381 F.3d 1338, 1348–49 (Fed. Cir. 2004);
Good, 189 F.3d at 1361–62. Mr. Mehaffy was not the
owner of the property at the time the easement was
negotiated. Nor was he the owner of the property before
the CWA was passed. Rather, he purchased the property
twenty-eight years after the passage of the CWA and
thirteen years after the property had been sold to MCC in
an intervening arms-length transaction. Thus, Mr. Me-
haffy’s reasonable investment-backed expectations must
be considered in light of the regulatory climate that
existed when he purchased the property. Appolo Fuels,
Inc., 381 F.3d at 1349; Good, 189 F.3d at 1361.

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MEHAFFY v. US 8
In legal terms, the property owner who buys land
with knowledge of a regulatory restraint “could be said to
have no reliance interest, or to have assumed the risk of
any economic loss.” Loveladies Harbor, Inc. v. United
States, 28 F.3d 1171, 1179 (Fed. Cir. 1994). Here, section
404 permitting requirements were in place and well
known at the time Mr. Mehaffy purchased the land. Mr.
Mehaffy admits that due to his work in the construction
field, he was aware of the need to obtain a section 404
permit when filling wetlands. App. 103. Additionally,
Mr. Mehaffy knew as early as 1980 the Corps intended to
apply this requirement to the property. Before he pur-
chased the property, Mr. Mehaffy had both constructive
and actual knowledge that federal regulations could
ultimately prevent him from exercising the right reserved
in the easement to fill certain land. Therefore, he did not
have a reasonable, investment-backed expectation that he
could develop the property without being subject to the
permitting requirements of the CWA.
The language of the easement does not change this
analysis. When the easement was granted in 1970, it did
not give Nomikano any new property rights. Rather, the
easement reserved a right which Nomikano shared with
all other similarly situated land owners—the ability to fill
one’s land without asking the government’s permission.
The CWA altered the expectation of this right for all
landowners. When Mr. Mehaffy purchased the land 30
years later, the easement could not give him a new expec-
tation of rights. Mr. Mehaffy is in the same position as
other property owners and has no expectation to fill his
wetlands without first obtaining a permit under the CWA.
III.
Because this court finds the reasonable expectations
factor dispositive, it affirms the trial court’s grant of

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MEHAFFY v. US 9
summary judgment and will not further discuss the
character of the government action or the economic im-
pact of the regulation.
AFFIRMED

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