Northwest Louisiana Fish & Game Preserve Commission v. United States

United States Court of Appeals for the Federal Circuit
2008-5039
NORTHWEST LOUISIANA FISH & GAME
PRESERVE COMMISSION,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
William P. Crews, Jr., William P. Crews, Jr., LLC, of Natchitoches, Louisiana,
argued for plaintiff-appellant.
Mark R. Haag, Attorney, Environmental & Natural Resources Division, United
States Department of Justice, of Washington, DC, argued for defendant-appellee. With
him on the brief were Ronald J. Tenpas, Assistant Attorney General, and Kathryn E.
Kovacs, Attorney. Of counsel was Kathryn J. Barton, Attorney.
Appealed from: United States Court of Federal Claims
Judge Nancy B. Firestone

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United States Court of Appeals for the Federal Circuit
2008-5039
NORTHWEST LOUISIANA FISH & GAME PRESERVE COMMISSION,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal Claims in case no. 02-CV-1031, Judge
Nancy B. Firestone.
___________________________
DECIDED: July 31, 2009
___________________________
Before LOURIE, RADER, and DYK, Circuit Judges.
Opinion for the court filed by Circuit Judge, RADER. Additional View filed by Circuit
Judge, RADER.
RADER, Circuit Judge.
The United States Court of Federal Claims dismissed the Northwest Louisiana
Fish & Game Preserve Commission’s Fifth Amendment taking claim based on the
United States’ construction and operation of a navigation project on the Red River.
Because the Court of Federal Claims correctly determined that the Commission’s
property interest arose from access to and use of a navigable waterway, this court
affirms.

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I.
The Red River rises in the Texas panhandle and flows east along the Texas-
Oklahoma and Texas-Arkansas borders, then south into Louisiana, eventually emptying
into the Atchafalaya and Mississippi Rivers. The State of Louisiana built the Allen Dam
to maintain water levels and prevent backwater flooding of the Red River. The Allen
Dam created three lakes: Black Lake, Clear Lake, and Saline Lake. Black Lake and
Clear Lake are connected. In fact, the local community often calls them the Black/Clear
Lake. In 1926, the State of Louisiana established the Northwest Louisiana Fish &
Game Preserve Commission (“Commission”) to enhance wildlife and fishery habitat and
recreational opportunities in the area.
The Saline Bayou tributary connects Black/Clear Lake to the Red River. Water
released from Black/Clear Lake flows through Saline Bayou for ten miles before
emptying into the Red River. In the past, the Commission controlled fish population and
aquatic vegetation growth in Black/Clear Lake by draining, or drawing down, the lake
into the Red River through the Saline Bayou.
In 1968, Congress authorized the “Red River Navigational Project” with the intent
of improving navigation to allow year-round navigation on the Red River. The project
increased water depths along the Red River by constructing five lock and dam
combinations at various points along the river. The area of the Red River between each
successive lock and dam combination constitutes a pool. The locks and dams operate
to insure that each pool is sufficiently deep to allow for year-round navigation.
The Saline Bayou connects Black/Clear Lake to the area of the Red River that
constitutes Pool 3. Before the locks, the United States Army Corps of Engineers
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(“Corps”) maintained Pool 3 at a depth of eighty-seven feet above mean sea level
(“MSL”). Because the Saline Bayou empties into Pool 3, the water level at that point in
the river directly affects the draw down potential of the Saline Bayou and hence,
Black/Clear Lake.
In 1982, the Allen Dam failed. In response, the State constructed an emergency
closure to prevent the total drainage of Black/Clear Lake. Following the failure, the
Commission sought approval to construct a new dam. The new dam—known as the
Black/Clear Lake Dam—was subject to the permit requirements of Section 404 of the
Clean Water Act. 33 U.S.C. § 1344. The Corps issued the permit, which included a
clause that provided that the United States “does not assume any liability” for “damages
to the permitted project or uses thereof as a result of current or future activities
undertaken by or on behalf of the United States in the public interest.”
After construction of the Black/Clear Lake Dam, the Commission periodically
released large amounts of water into the Red River in order to lower the water level and
control the growth of unwanted aquatic vegetation. Using this procedure, the
Commission maintained acceptable levels of fish and plant growth in Black/Clear Lake.
The last scheduled draw down of Black/Clear Lake occurred in the fall of 1994, lowering
the level of the lake by eight feet.
In early 1995, the Corps raised the level of Pool 3 to ninety-five feet MSL, eight
feet MSL above its previous level. At this water level, the Commission could only lower
Black/Clear Lake by a maximum of 4.5 feet, between 3.5 and 6.5 feet less than what the
Commission required to prevent unwanted aquatic growth. The uncontrolled growth of
aquatic weeds began to cause significant damage by early 1995.
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In late 1996, the Commission requested the Corps to lower the water level of the
Red River to allow for the draw down of Black/Clear Lake. The Commission contended
that the new water level in Pool 3 limited its ability to control the growth of unwanted
vegetation. The Corps denied the Commission’s request. By early 1997, severe
hydrilla and coontail infestation began to occur, allegedly making some parts of the
Lake useless for recreation.
The Commission has been seeking redress since 1997 for the alleged
condemnation of the preserve as a result of the United States’ construction and
operation of the Red River Navigational Project. The Commission first filed a complaint
in state court, which was subsequently removed to federal court and dismissed. The
dismissal was appealed to the Fifth Circuit, where that court affirmed the dismissal. Nw.
La. Fish & Game Pres. Comm’n v. Red River Waterway Comm’n, 220 F.3d 584 (5th Cir.
2000) (unpublished per curiam). The Commission next filed an administrative claim
sounding in tort against the government that was eventually transferred to the United
States Court of Federal Claims. Nw. La. Fish & Game Pres. Comm’n v. United States,
62 Fed. Cl. 760, 761 (2004).
On March 31, 2004, the government filed a Motion for Judgment on the
Pleadings under Rule 12(b)(1) for lack of subject matter jurisdiction and/or under Rule
12(b)(6) for failure to state a claim upon which relief could be granted. The Court of
Federal Claims dismissed on the basis that the claim was not filed within the Tucker
Act’s six-year statute of limitations. Id. at 768. The Commission then appealed to the
Federal Circuit. This court reversed the Court of Federal Claims, holding that the
statute of limitations did not begin to run until 1997, after the appearance of significant
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growth of aquatic weeds in Black/Clear Lake and the Corps’ refusal to lower the water
level in Pool 3. Nw. La. Fish & Game Pres. Comm’n v. United States, 446 F.3d 1285
(Fed. Cir. 2006).
On remand, the Court of Federal Claims requested supplemental briefing on the
remaining issues and on October 31, 2007, granted in part and denied in part the United
States’ motion to dismiss. Nw. La. Fish & Game Preserve Comm’n v. United States, 79
Fed. Cl. 400 (2007). The Court of Federal Claims entered judgment dismissing the
claims sounding in tort. Id. at 406. The court also dismissed the taking claim based on
the inability to control water levels and aquatic growth in Black/Clear Lake as barred by
the navigational servitude. Id. at 411. The Court of Federal Claims declined to grant
judgment on the Commission’s claim that the backwater from Pool 3 and other flooding
resulted in a physical invasion. Id. at 411-12. The court noted that if the Commission
could demonstrate such a physical invasion, it may be entitled to compensation. Thus,
the taking claim based on physical invasion, e.g., due to backwater flooding, is still
pending before the Court of Federal Claims. That court certified its judgment for
interlocutory appeal under its Rule 54(b).
The Commission timely appealed to this Court. On appeal, the Commission
submits that the Court of Federal Claims erred when it dismissed its taking claim as
barred by the navigational servitude. The Commission does not challenge the dismissal
of its claims sounding in tort.
II.
This Court reviews without deference the Court of Federal Claims’ dismissal of a
complaint for lack of jurisdiction or failure to state a claim. Samish Indian Nation v.
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United States, 419 F.3d 1355, 1363 (Fed Cir. 2005). When considering a motion to
dismiss, the trial court views well-pleaded factual allegations in the complaint as true.
Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988).
The Fifth Amendment instructs that private property shall not “be taken for public
use, without just compensation.” U.S. Const. amend. V. The taking calculus first
identifies the private party’s property interest; then the analysis weighs whether that
property has been deprived or abridged sufficiently to qualify as “taken.” Members of
Peanut Quota Holder Ass’n v. United States, 421 F.3d 1323, 1330 (Fed. Cir. 2005). In
other words, a compensable Fifth Amendment taking requires a showing that the
Government has taken a legally protected property right. United States v. Willow River
Power Co., 324 U.S. 499, 503 (1945). Not all property interests are legally protected
property rights. “[O]nly those economic [interests] are ‘rights’ which have the law [in]
back of them, and only when they are so recognized may courts compel others . . . to
compensate for their invasion.” Id. at 502.
The Commerce Clause confers upon Congress “a unique position” with respect
to navigable waters. United States v. R.B. Rands, 389 U.S. 121, 122 (1967). “The
power to regulate commerce comprehends the control for that purpose, and to the
extent necessary, of all navigable waters of the United States.” Id. at 122-23 (quoting
Gilman v. City of Phil., 70 U.S. (3 Wall.) 713, 724-25 (1866)) (emphasis added). This
power to regulate navigation confers upon the United States a “dominant servitude” on
navigable waters. Id. at 123. As a result, conflicts of interest between riparian owners
and the Government are not to be reconciled as between equals, “but the private
interest must give way to a superior right, or perhaps it would be more accurate to say
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that as against the Government such private interest is not a right at all.” Willow, 324
U.S. at 510. An interest that “arises from access to, and use of, navigable waters” falls
within the Government’s dominant servitude, and any private interest is subservient to
that servitude. R.B. Rands, 389 U.S. at 124-25.
The Government’s navigational servitude is derived from the principle that all
navigable waters in the United States are considered public property. Owen v. United
States, 851 F.2d 1404, 1408 (Fed. Cir. 1998) (en banc). This court has acknowledged
the extraordinary priority given to navigable waters, noting that they are under the
“exclusive control of the federal government.” Id. The physical limits of the dominant
servitude include “the entire . . . stream, which includes the lands below ordinary high
water mark.” United States v. Chi. Milwaukee, St. Paul, & Pac. R.R. Co., 312 U.S. 592,
596-97 (1941). The dominant servitude defines the limits within which Congress can
work to improve navigation without creating an obligation to pay just compensation
under the Fifth Amendment. Owen, 851 F.2d at 1408. The Supreme Court has
explained that the proper exercise of the Government’s dominant servitude in these
areas does not constitute
an invasion of any private property right in such lands for which the United
States must make compensation. The damage sustained results not from
a taking of the riparian owner’s property in the stream bed, but from the
lawful exercise of a power to which that property has always been subject.
Chi. Milwaukee, 312 U.S. at 596-97. As a dominant servitude, it “can be asserted to the
exclusion of any competing or conflicting one.” United States v. Twin City Power Co.,
350 U.S. 222, 224-25 (1956).
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III.
This case arises from a conflict between the Commission’s responsibility to
maintain a natural preserve and the Corps’ responsibility to maintain year-round
navigation along the Red River. In the first instance, this court must consider whether
the “property right” asserted is in fact a legally protectable property right. Willow, 324
U.S. at 502-03.
Whether an interest is a protectable right under the Fifth Amendment takes into
consideration such things as “the navigable or non-navigable nature of the waters from
which [the grievant] advantages,” and “whether the conflict is with another private
riparian interest or with a public interest in navigation.” Id. In Willow, a hydroelectric
plant that operated under the head produced by the elevation difference between the
Willow River and the St. Croix River sought compensation for impaired efficiency of its
plant after the Government raised the water level of the St. Croix by three feet. The
Supreme Court held that the Willow River Power Company (Willow Power) did not have
a legally protected right in the level of the St. Croix River as a run-off for tail waters of its
hydroelectric power plant. Id. at 509-11.
The Court reasoned that because the Willow River was a navigable river and the
conflict did not arise between private riparian interests but between a private riparian
owner and the public interests within the navigational servitude, Willow Power’s interest
in the level of the St. Croix River was subservient to the Government’s dominant
servitude. Id. at 509-10. Willow Power’s interest “constituted a privilege or a
convenience, enjoyed for many years, permissible so long as compatible with
navigation interests, but it is not an interest protected by law when it becomes
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inconsistent with plans authorized by Congress for improvement of navigation.” Id. at
509. Although both the Government and Willow Power had interests in the water level
of the St. Croix, these interests were not to be “reconciled as between equals, but the
private interest must give way to a superior right.” Id. at 510. The Government had not
taken a legally protected property right from Willow Power and thus was not required to
pay compensation because Willow Power’s interest arose from access to a navigable
waterway. Id. at 511.
On appeal, Appellants argue that their property interest does not fall within the
Government’s servitude for two principle reasons: (1) Saline Bayou is not a navigable
waterway and (2) Black/Clear Lake is simply outside of the navigational servitude.
First, regardless of the navigability of the Saline Bayou, the Red River is a
navigable waterway. The ability to draw down Black/Clear Lake depends on the water
levels of not only the Saline Bayou, but also of the Red River. In this case, the water
level of Pool 3 was originally at eighty-seven feet MSL. In early 1995, it was raised to
ninety-five feet MSL, an increase of eight feet MSL.
As was the case in Willow, the Commission’s property interest in draining water
into the Red River depends on “access to, and use of, navigable waters.” Willow, 324
U.S. at 503. Thus, the Court of Federal Claims correctly concluded:
to the extent the [appellant] bases its takings claim on the ability to drain
from Black/Clear Lake into the Red River, which requires the elevation of
the Red River to be below a certain level, the plaintiff’s property interest is
subservient to the navigational servitude.
Nw. La. Fish & Game Pres. Comm’n v. United States, 79 Fed. Cl. 400, 411 (2007).
Because the Commission’s interest is subservient to the Government’s dominant
servitude, it is not compensable under the Fifth Amendment.
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Turning to the Appellant’s second argument, the Government’s navigational
servitude does not create a blanket exception to Fifth Amendment takings. See Kaiser
Aetna v. United States, 444 U.S. 164 (1979) (considering whether there was a physical
invasion). The servitude encompasses the power to regulate the stream itself and the
lands beneath the ordinary high-water mark (“OHWM”). The Government must
compensate for any taking of property above the OHWM. See, e.g., Baskett v. United
States, 8 Cl. Ct. 201, 209 (1985); Tri-State Materials Corp. v. United States, 550 F.2d 1,
5 (Ct. Cl. 1977); Goose Creek Hunting Club, Inc. v. United States, 518 F.2d 579, 583
(Ct. Cl. 1975). The Appellants submit that Black/Clear Lake falls well outside the
physical OHWM of the Red River and that, even if the Government’s actions were within
the OHWM, the effects spread outside of the OHWM and amount to a compensable
taking.
This court has recognized that Government action with effects outside the
OHWM may amount to a compensable taking. See Owen, 851 F.2d at 1418. In Owen,
the Corps dredged and widened portions of the Tombigbee River. Id. at 1406-07. The
dredging caused an increase in water speed and drastically increased erosion of the
river bank. The erosion eventually undermined the land owner’s property and caused
her house to collapse into the river. Id. In weighing Owen’s property interest against
the Government’s interest in controlling navigable waters, this court concluded that a
compensable taking had occurred, even though the water had not been raised above its
OHWM and was therefore technically within the government’s dominant servitude:
[T]he allegedly taken property was the native soil and rock which, although
below the high-water mark, supported the fast land and house located
beyond the high-water mark . . . . There must also be horizontal limits to
the “bed” of a river; otherwise, the navigational servitude would extend
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2008-5039 11
infinitely in all directions and swallow up any claim for “just compensation”
under the Fifth Amendment for damages occurring anywhere below the
elevation of the high-water mark.
Id. at 1410. This case, however, does not present a situation analogous to Owen.
Here, the Commission’s property interest—the ability to draw down the
Black/Clear Lake in order to control unwanted aquatic weed growth—arises from
access to, and use of navigable waters. See, e.g., Willow, 324 U.S. at 503. As such,
the Court of Federal Claims properly found that the Commission’s economic value in the
property arose from access to and use of a navigable waterway. Thus, the navigational
servitude bars the Commission’s taking claim.
IV.
To the extent that the Commission asserts a taking of its ability to draw down
Black/Clear Lake in order to control unwanted aquatic weed growth, that interest is
subservient to the Government’s navigational servitude. Because the Court of Federal
Claims properly dismissed the Commission’s claim as barred by the navigational
servitude, this court affirms.
AFFIRMED

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United States Court of Appeals for the Federal Circuit
2008-5039
NORTHWEST LOUISIANA FISH & GAME PRESERVE COMMISSION,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal Claims in case no. 02-CV-1031, Judge
Nancy B. Firestone.
RADER, Circuit Judge, additional view.
While I endorse the reasoning and results of the panel, I write separately to
highlight a distressing ambiguity in this court’s binding precedent. Neither this court nor
the Supreme Court has proffered any material basis justifying a different treatment of
navigation versus other Fifth Amendment public purposes. Why should navigation be
received any differently than highway transportation, public safety, or environmental
protection? In light of the special protections afforded to navigation, it seems only
prudent that such a material basis be provided.

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