United States Court of Appeals 

for the Federal Circuit 

__________________________ 

JOHN R. MILDENBERGER, MICHELE C. RUTH, 

ROBERT O. BARATTA, CAROL A. BARATTA, 

JOSEPH K. HENDERSON, 

PATRICIA T. HENDERSON, CHARLES C. CRISPIN, 

JULIE D. CRISPIN, WILLIAM E. GUY, JR., 

STELLA S. GUY, JAMES J. HARTER, 

PATRICIA C. HARTER, FLOYD D. JORDAN, 

MARJORIE N. JORDAN, CHARLES V. LOCKE, 

VERA A. LOCKE, ANN S. MACMILLAN, 

PAUL PARE, ROBERT H. PARE, JR., 

ERYN T. PARE, JOHN F. PATTESON, 

ROBERT PEARSON, FREDERICK RUTZKE, 

KIMBERLY RUTZKE, BRIAN SCHMIDT, 

DEBORAH SCHMIDT, MARK S. BEATTY, 

ATHOL DOYLE CLOUD, JR., PATRICIA P. CLOUD, 

MARK R. CONNELL, PHILIP TAFOYA, 

AND GERALDINE TAFOYA, 

Plaintiffs-Appellants, 

v. 

UNITED STATES, 

Defendant-Appellee. 

__________________________ 

2010-5084 

__________________________ 

Appeal from the United States Court of Federal 

Claims in case no. 06-CV-760, Judge Lynn J. Bush. 

_____________________ 
MILDENBERGER v. US 2

Decided: June 30, 2011 

_____________________ 

ROGER J. MARZULLA, Marzulla Law, of Washington, 

DC, argued for plaintiffs-appellants. With him on the 

brief was NANCIE G. MARZULLA. 

KATHERINE J. BARTON, Attorney, Appellate Section, 

Environment & Natural Division, United States Department of Justice, of Washington, DC, argued for defendantappellee. With her on the brief were ROBERT DREHER, 

Acting Assistant Attorney General, and JUSTIN R. PIDOT, 

Attorney. 

KEITH W. RIZZARDI, South Florida Water Management 

District, of West Palm Beach, Florida, for amicus curiae 

South Florida Water Management District. 

__________________________ 

Before BRYSON, GAJARSA, and LINN, Circuit Judges. 

GAJARSA, Circuit Judge. 

The issue before this court concerns the determination 

of when a takings claim accrues. Appellants John R. 

Mildenberger, et al. (collectively, “Claimants”) sued the 

United States (“Government”) in the United States Court 

of Federal Claims seeking compensation for the alleged 

taking of their riparian and upland property rights. 

Because Claimants’ alleged takings claims are barred by 

the statute of limitations in 28 U.S.C. § 2501 and Claimants failed to establish that Florida law recognizes compensable property interests in the riparian rights they 

allege were injured by the Government, we affirm the 

Court of Federal Claims’ dismissal of their claims. 
3 MILDENBERGER v. US

BACKGROUND

I. 

Since the late 1800s, the State of Florida and the 

United States Army Corps of Engineers (“Corps”) have 

constructed a system of canals, levees, and storage areas 

to control the water levels of Lake Okeechobee. In 1948, 

Congress authorized the Central and South Florida 

Project (“C&SF Project”) to aid flood control, water conservation, prevention of saltwater intrusion, fish and 

wildlife preservation, and navigation. Flood Control Act 

of June 30, 1948, ch. 771, § 203, 62 Stat. 1175. The C&SF 

Project extends from Orlando, Florida to the Everglades 

and includes the Okeechobee Waterway. The Okeechobee 

Waterway connects the Atlantic Ocean and Gulf of Mexico 

via Lake Okeechobee, the St. Lucie River, and the St. 

Lucie Canal. 

Although the St. Lucie River was originally a freshwater stream unconnected to the ocean, in 1892, private 

interests constructed a navigable passage linking it to the 

Atlantic Ocean. The mixing of the saline ocean water 

with the fresh river water made the St. Lucie River brackish and created an environment suitable for certain types 

of marine life. In 1924, to connect the St. Lucie River to 

Lake Okeechobee, the State of Florida built the St. Lucie 

Canal. As part of the C&SF Project, the St. Lucie Canal’s 

depth and discharge capacity were increased to improve 

control over the water level in Lake Okeechobee. H.R. 

Doc. No. 643, 80th Cong. 2d Sess. at 36-37 (1948). 

The Corps manages the level of Lake Okeechobee to 

meet its navigational, flood control, and other objectives. 

The Corps manages the lake’s water levels in accordance 

with a regulation schedule, which is an official management policy that dictates when water is released from the 

lake based on the current water level and time of year. 
MILDENBERGER v. US 4

When significant rainfall is anticipated, the Corps makes 

low-level releases from the lake pursuant to a “temporary 

planned deviation” from the regulation schedule. Supplemental Appendix (“S.A.”) 138. Releasing water from 

the lake increases outflow to connected canals and waterways, including the St. Lucie Canal. 

The St. Lucie Canal and St. Lucie River also receive 

water from other watersheds and canals that are not part 

of the C&SF Project. The water entering the St. Lucie 

River from both the C&SF Project and other sources is 

polluted by sediments and excess nutrients, such as 

phosphorus and nitrogen, that interfere with the St. Lucie 

ecosystem. Plans for restoring the balance of the ecosystem acknowledge that sediment, phosphorous, and nitrogen also enter the St. Lucie River from multiple sources. 

In 1952, a local news organization reported that water 

released from Lake Okeechobee into the St. Lucie Canal 

had caused “irreparable damage.” S.A. 294. Additionally, 

a Corps report regarding the St. Lucie Canal from 1957 

noted: 

Local interests have contended for many years 

that the release of lake-regulation discharges 

through the St. Lucie Canal causes serious damage to fishing and boating in the St. Lucie estuary 

. . . . [T]he turbid fresh-water discharges replace 

the brackish water in the river and cause many 

fish to leave the area; that marine life unable to 

leave is killed by the fresh water; and that sediment carried by the releases is deposited in the 

estuary . . . . 

Past studies of the sedimentation problem in [the] 

St. Lucie Canal have concluded that (1) the release of turbid fresh water through the canal seriously affects sport fishing and other recreational 
5 MILDENBERGER v. US

activities in the Stuart area; (2) during long discharge periods the salt water in the St. Lucie 

River is almost completely replaced by fresh water; (3) the releases carry fine sands, fragments of 

shell, and organic material into the St. Lucie estuary, much of which is deposited in the Palm 

City shoal; (4) an insignificant amount of sediment enters the estuary from uncontrolled drainage points and from the natural watershed of [the] 

St. Lucie River and its North and South Forks; (5) 

bank caving has contributed materially to the 

sediment load; and (6) in the mixing zone of fresh 

and salt water, the colloidal matter carried by the 

fresh water precipitates into a dark gray flocculent which settles to the bottom in places where 

there are low current velocities and little turbulence, and after reaching the bottom compacts 

gradually into a sticky clay deposit that resists 

subsequent removal by currents and turbulence 

more effectively than do sand, shell, or noncolloidal silts. 

S.A. 233-40. 

In 1970, a Wall Street Journal editorial noted that 

“the once-clear St. Lucie is black with mud, and Corps 

officials in Florida admit their agency is largely to blame. 

Nearly all the fish are gone. Gone, too, are most of the 

oysters, clams, pelicans, ospreys and wild ducks.” S.A. 

297. That year, an internal memorandum prepared by 

Colonel A.S. Fullerton of the Corps noted that the discharges through the St. Lucie Canal “erode the canal 

banks, fill the estuary with shoals, discolor the water, 

deny boating in the estuary, and drive out the fish.” Id.

From 2004 through 2006, Lake Okeechobee experienced long periods of high water levels, stressing the dike 
MILDENBERGER v. US 6

around the lake and prompting the Corps to release high 

volumes of water into the St. Lucie Canal. In 2004, state 

environmental officials warned people not to swim or fish 

in the St. Lucie River because of high bacteria levels. In 

2005, due to algal blooms, the Martin County Department 

of Health banned swimming, fishing, and other contact 

with the St. Lucie River. The discharge of water from the 

lake reduced the salinity of the St. Lucie Canal to nearly 

zero, resulting in the death of oyster beds. The demise of 

the oyster beds also contributed to the decline of numerous other estuarine species including gastropods, crabs, 

sponges, fish, and birds. The amount of sea grass at the 

mouth of the St. Lucie River also substantially declined in 

2006.

II. 

Claimants are twenty-two individuals who own property along the St. Lucie River and one individual who 

owns land abutting the St. Lucie Canal. On November 

13, 2006, Claimants filed a complaint in the 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. Compl. 2. The Corps’ releases of 

water allegedly took Claimants’ “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. Id. 12 ¶ 31, 13 ¶ 33. The complaint 

alleged that Lake Okeechobee has become laden with 

nutrients from agricultural activities. Id. 11 ¶ 28. These 

nutrients “concentrated in the Lake’s waters, leading to 

its pollution and algae blooms and extreme turbidity.” Id.

Additionally, the complaint alleges that the Corps’ releases of large volumes of fresh water into the brackish 

water of the estuary “operate as a pollutant” because 
7 MILDENBERGER v. US

“[f]resh water releases destroy the delicate balance between salt and fresh water so critical to a tidal estuary.” 

Id. Claimants maintain that the Corps’ periodic releases 

of polluted fresh water into the St. Lucie River have also 

“irrevocably altered the biochemical balance (including 

salinity levels) and character of the St. Lucie, degrading 

fish life and other marine organisms and critically needed 

vegetation.” Id. 11 ¶ 29. The complaint also sought 

compensation for the alleged taking of upland property 

interests. 

The Government filed a motion to dismiss and for 

summary judgment. Seven months later, the trial court 

requested supplemental briefing to address additional 

issues, including whether the “stabilization doctrine,” 

under which a taking claim does not accrue until a continuous physical process set in motion by the Government 

has stabilized, applied to this case. J.A. 89. Claimants 

argued that the stabilization doctrine applies and that 

their claims accrued at the time of the Okeechobee releases in 2003 and 2005. The Government argued that 

the stabilization doctrine did not apply and that even if it 

did, the nature of the environmental harm caused by the 

water released into the St. Lucie River was apparent long 

before 2000. 

The Court of Federal Claims granted the Government’s motion to dismiss, ruling that Claimants’ suit was 

filed outside the six-year statute of limitations applicable 

to claims for compensation under the Tucker Act, 28 

U.S.C. § 1491. Mildenberger v. United States, 91 Fed. Cl. 

217, 233 (2010). The trial court held that the stabilization 

doctrine applied for three reasons. First, neither of the 

parties proposed a potential date of claim accrual that did 

not depend on the doctrine. Second, the Government also 

failed to discuss how traditional accrual principles applied 

to the exclusion of the stabilization doctrine. Finally, the 
MILDENBERGER v. US 8

trial court found the facts of Northwest Louisiana Fish & 

Game Preserve Commission v. United States, 446 F.3d 

1285, 1290-91 (Fed. Cir. 2006) similar to those present in 

this case. Id. at 234. 

The trial court applied the stabilization doctrine and 

found that “plaintiffs should have been aware of the 

permanence of defendant’s discharges into the St. Lucie 

River long before November 13, 2000.” Id. at 235. The 

court also determined that “the undisputed evidence 

presented by defendants demonstrates that the asserted 

environmental damage to the St. Lucie River had occurred and was in evidence almost fifty years before 

plaintiffs filed their complaint, and repeatedly occurred 

thereafter.” Id. at 236. Finally, the court noted that any 

expectations Claimants had that the Government would 

mitigate the harm “arrived too late in face of a longexpired statute of limitations” and, therefore, did not 

prevent accrual of the claim. Id. at 239. 

The Court of Federal Claims also granted summary 

judgment for the Government on alternative grounds. 

The trial court first held that Claimants’ alleged riparian 

rights of fishing, swimming, boating, and recreation were 

not compensable rights because those rights are held in 

common with the public. Id. at 242. Additionally, the 

court rejected Claimants’ asserted right to observe wildlife as unsupported by any legal authority. Id. at 242-44. 

The trial court further concluded that Claimants had not 

identified any cases applying Florida law to hold that the 

pollution of a navigable waterway by a governmental 

entity effected a compensable taking of property. Id. at 

245-47. Moreover, the trial court found that any right of 

riparian owners to pollution-free water is not a vested, 

compensable right because it is held in common with the 

public. Id. Finally, the trial court held that even if 

Claimants possessed compensable riparian rights affected 
9 MILDENBERGER v. US

by the Government’s actions, their claims based on such 

injury were barred because the Corps’ operation of the 

C&SF Project and the discharge of water into the St. 

Lucie River were exercises of its dominant navigational 

servitude. Id. at 247-55. The Court of Federal Claims 

entered partial judgment on the riparian claims and after 

voluntarily dismissing their remaining claims, Claimants 

filed this timely appeal. This court has jurisdiction over 

this appeal pursuant to 28 U.S.C. § 1295(a)(3). 

DISCUSSION

This court reviews the Court of Federal Claims’ dismissal of a complaint for lack of jurisdiction and grant of 

summary judgment without deference. Samish lndian 

Nation v. United States, 419 F.3d 1355, 1363 (Fed. Cir. 

2005); Schooner Harbor Ventures, Inc. v. United States, 

569 F.3d 1359, 1362 (Fed. Cir. 2009). When the factual 

underpinnings of the Court of Federal Claims’ jurisdiction 

are contested, the Court of Federal Claims “may weigh 

relevant evidence.” Ferreiro v. United States, 350 F.3d 

1318, 1324 (Fed. Cir. 2003). This court reviews any 

findings regarding jurisdictional facts for clear error. Id. 

We first address whether the stabilization doctrine applies and whether any mitigation promises prevented 

accrual of the takings claims and then determine whether 

Claimants established any compensable property interests under Florida law.

I. 

A. 

The Fifth Amendment of the United States Constitution ensures that the Government does not appropriate 

private property for public use without just compensation. 

See U.S. Const. amend. V. Compensable takings of private property can occur not only through the Govern-
MILDENBERGER v. US 10

ment’s physical invasion or appropriation of private 

property, but also by issuance of regulations that unduly 

burden private property interests. Huntleigh USA Corp. 

v. United States, 525 F.3d 1370, 1378 (Fed. Cir. 2008) 

(citations omitted). When the Government takes property 

but fails to compensate the owner, the Tucker Act provides jurisdiction to enforce the owner’s compensatory 

right. See Boling v. United States, 220 F.3d 1365, 1370 

(Fed. Cir. 2000). Claims for compensation under the 

Tucker Act, which waived the sovereign immunity of the 

United States, are subject to a strict statute of limitations 

provision: “[e]very claim of which the United States Court 

of Federal Claims has jurisdiction shall be barred unless 

the petition thereon is filed within six years after the 

claim first accrues.” 28 U.S.C. § 2501; see also Lehman v. 

Nakshian, 453 U.S. 156, 161 (1981) (“[L]imitations and 

conditions upon which the Government consents to be 

sued must be strictly observed, and exceptions thereto are 

not to be implied.”) 

Claims accrue when the events giving rise to the Government’s alleged liability have occurred and the claimant 

is or should be aware of their existence. Hopland Band of 

Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. 

Cir. 1988). Claimants filed this suit on November 13, 

2006. Because they bear the burden of establishing 

subject matter jurisdiction, Claimants must demonstrate 

that they could not have reasonably known the facts 

fixing the Government’s alleged liability prior to November 13, 2000. 

Claimants argue that the stabilization doctrine applies in this case and supplants traditional accrual principles. The stabilization doctrine recognizes that 

determining the exact point of claim accrual is difficult 

when the property is taken by a gradual physical process 

rather than a discrete action undertaken by the Govern-
11 MILDENBERGER v. US

ment such as a condemnation or regulation. See, e.g., 

Navajo Nation v. United States, 631 F.3d 1268, 1273-74 

(Fed. Cir. 2011). Claimants maintain that the gradual 

environmental degradation of the St. Lucie River caused 

by the Corps’ discharges did not stabilize until September 

of 2004. The Government argues that the stabilization 

doctrine does not apply because there is no evidence that 

Claimants’ land has been physically invaded by its discharges into the St. Lucie River. 

The stabilization doctrine originated in United States 

v. Dickinson, 331 U.S. 745 (1947). In Dickinson, a Government-constructed dam impounded water and raised 

the river pool level in successive stages causing intermittent—and eventually permanent— flooding of the respondents’ land. Id. at 746-47. The Court discouraged strict 

application of accrual principles because when a public 

project gradually results in cumulative damage to private 

property over a long period of time, it may be difficult to 

determine the precise date on which the takings claim 

accrued. Thus, property owners may have difficulty 

determining when to sue due to the uncertainty of the 

damage and the risk of res judicata. Id. at 748. As the 

Court explained, “[t]he Fifth Amendment expresses a 

principle of fairness and not a technical rule of procedure 

enshrining old or new niceties regarding ‘causes of action’-

when they are born, whether they proliferate, and when 

they die.” Id. (citation omitted). 

In Dickinson, the Supreme Court rejected the Government’s contention that the takings claim accrued 

immediately upon the first inundation of the property 

because at that point, the frequency and permanency of 

the flooding were still undeterminable. See id. at 749. As 

the taking was caused by a continuous process, the Court 

held that accrual of the claim was delayed until the 

situation had “stabilized” such that the “consequences of 
MILDENBERGER v. US 12

the inundation have so manifested themselves that a final 

account may be struck.” Id. The stabilization doctrine is 

designed to ensure that “when the Government chooses 

not to condemn land but to bring about a taking by a 

continuing process of physical events, the owner is not 

required to resort either to piecemeal or to premature 

litigation to ascertain the just compensation for what is 

really ‘taken.’” ld. (citation omitted). 

The Court clarified the stabilization doctrine in 

United States v. Dow, stating that “[t]he expressly limited 

holding in Dickinson was that the statute of limitations 

did not bar an action under the Tucker Act for a taking by 

flooding when it was uncertain at what stage in the 

flooding operation the land had become appropriated for 

public use.” 357 U.S. 17, 27 (1958). In Fallini v. United 

States, this court explained 

[f]ollowing Dow, the Court of Claims adopted a 

similarly narrow interpretation of Dickinson and 

the meaning of “stabilization” in the takings context. In Kabua v. United States, 546 F.2d 381, 384, 

212 Ct.Cl. 160 (1976), the court noted that in Dow, 

the Supreme Court “more or less limited [Dickinson] to the class of flooding cases to which it belonged, when the landowner must wait in 

asserting his claim, until he knows whether the 

subjection to flooding is so substantial and frequent as to constitute a taking.” 

56 F.3d 1378, 1381 (Fed. Cir. 1995). 

Although claimants are not required to sue when it is 

still uncertain whether the gradual process will result in 

a permanent taking, the stabilization doctrine also does 

not permit a claimant to delay bringing suit “until any 

possibility of further damage has been removed.” Columbia Basin Orchard v. United States, 88 F. Supp. 738, 739 
13 MILDENBERGER v. US

(Ct. CI. 1950). As explained in Boling, the “touchstone for 

any stabilization analysis is determining when the environmental damage has made such substantial inroads 

into the property that the permanent nature of the taking 

is evident and the extent of the damage is foreseeable.” 

220 F.3d at 1373. The obligation to sue arises once the 

permanent nature of the Government action is evident, 

regardless of whether damages are complete and fully 

calculable. Goodrich v. United States, 434 F.3d 1329, 

1336 (Fed. Cir. 2006) (internal quotations and citations 

omitted). 

The Corps has released large volumes of polluted nonsaline water from Lake Okeechobee into the St. Lucie 

River for almost eighty years and the environmental 

effects have been evident since the 1950s. In the 1990s, 

some Claimants formed the St. Lucie Initiative, Inc. to 

restore the health and productivity of the St. Lucie River. 

A 1996 volume of the Muckraker, the newsletter of the 

Initiative, summarized the history of harm to the river. 

The newsletter described a “massive algae bloom” that 

had occurred earlier that year, explained that water 

quality “changed drastically” after construction of canals 

in the early part of the century and in the 1950’s, and that 

“[n]ot since the decade of 1950-59 has the river been so 

heavily polluted.” S.A. 335-37. The Initiative recognized 

that the river was polluted with agricultural runoff and 

that “[t]he ancillary failures of grass beds, benthic life, 

and fish and wildlife in general are obvious.” S.A. 332-33. 

Regardless of whether the stabilization doctrine applies, 

Claimants’ suit is untimely. 

The harms to Claimants’ alleged riparian rights from 

the Corps’ operation of the C&SF Project in the 1950s 

mirrored Claimants’ alleged injuries and, therefore, the 

environmental damage was foreseeable and manifested 

prior to November 13, 2000. 
MILDENBERGER v. US 14

B. 

Claimants now assert that the Government promised 

to mitigate the damage, thereby delaying accrual of their 

claims. As explained in Banks v. United States, the 

Government’s promises to mitigate damages caused by a 

continuous physical process delays accrual of a takings 

claim when the claimant demonstrates that the “‘predictability [and permanence] of the extent of the damage to 

the [claimant’s] land’ was made justifiably uncertain by 

the Corps’ mitigation efforts.” 314 F.3d 1304, 1309 (Fed. 

Cir. 2003) (quoting Applegate v. United States, 25 F.3d 

1579, 1583 (Fed. Cir. 1994)). In Applegate, the Corps 

proposed plans for a sand transfer plant to rebuild 

beaches washed away because its Canaveral Harbor 

project interrupted the littoral flow of sand that had 

previously replenished the beaches. 25 F.3d at 1580. The 

landowners eventually sued, alleging a taking by erosion. 

Id. at 1582. This court found that the Corps’ periodic 

promises to restore the sand prevented stabilization of 

that very gradual physical taking because “the landowners did not know when or if their land would be permanently destroyed.” Id. at 1583. 

In Banks, property owners sued to recover for taking 

of their property due to gradual erosion of shoreline, as 

significantly exacerbated due to jetties constructed by the 

Army Corps of Engineers. 314 F.3d at 1306. This court 

found that the taking claim did not accrue when the 

jetties were constructed and the shoreline began to erode 

at a substantially increased rate, so long as mitigation 

efforts conducted by the Corps muddied the waters and 

made the permanence of any taking unclear. Id. at 1309-

10. The statute of limitations began to run on the property owners’ takings claims when the Corps’ reports 

indicated that erosion was permanent and irreversible. 

Id. at 1310. 
15 MILDENBERGER v. US

To fall within the mitigation doctrine expressed in 

Applegate and Banks, Claimants argue that the accrual of 

their takings claims was delayed by the Corps’ “numerous 

efforts and even more promises to mitigate the damage to 

the St. Lucie.” Appellants’ Br. 40. Claimants argue that 

the owners were “justifiably uncertain about the predictability and permanence of the damage caused by the 

Corps’ dumping of non-saline water into the estuary.” Id.

40-41. The Claimants’ arguments to the trial court referenced only mitigation efforts that commenced in the mid1990s, so, as the Government notes, these fact-based 

arguments about earlier mitigation promises are raised 

for the first time on appeal, and could be considered 

waived. Cemex, S.A. v. United States, 133 F.3d 897, 904 

(Fed. Cir. 1998) (holding that this court will not review 

factual issues raised for the first time on appeal). These 

arguments also lack merit. 

There is no justifiable uncertainty due to the Corps’ 

promises before the 1990s because the Corps neither 

undertook nor committed itself to any mitigation activities. None of the documents or proposals Claimants 

interpret as committing the Corps to action actually does 

so. Claimants’ citations to local newspaper articles, 

declarations by members of the St. Lucie Initiative, and 

the St. Lucie Initiative’s newsletter are not competent 

evidence of any Corps promises to mitigate damage. Also, 

the Court of Federal Claims considered the 1970 Corps 

memorandum by Col. A.S. Fullerton. The memorandum 

is an internal document reflecting only one Corps official’s 

views regarding a possible method of addressing the 

Corps’ public relations problem due the negative effects of 

regulatory discharges from Lake Okeechobee. The document did not notify the public of any potential Corps 

action and did not commit the Corps to any action, unlike 
MILDENBERGER v. US 16

the Corps’ mitigation plans and promises in Applegate

and Banks. 

The Corps’ consideration of potential projects to improve management of waterways in South Florida did not 

commit it to any mitigation activities. As the trial court 

noted, neither Plan 6 in the Everglades Reconnaissance 

report of 1994, which involved sending water southward 

in a large sheet between two canals, nor the C-44 Reservoir proposed in 1998 ever materialized. Mildenberger, 91 

Fed. Cl. at 238. The new lake regulation schedule that 

the Corps adopted in 2000 was solely intended to improve 

the environmental condition of the lake and did not lessen 

the need for regulatory discharges. Id. The Court of 

Federal Claims correctly found that the mitigation efforts 

cited by the Claimants could not resurrect their stale 

takings claims. 

II. 

Additionally, Claimants failed to establish that Florida law recognizes compensable property interests in the 

riparian rights they allege were injured by the Government. The Court of Federal Claims correctly ruled that 

Claimants failed to establish compensable property rights 

to view wildlife or boat, fish, or swim in the waters adjacent to their properties. To determine whether the Government is liable for a compensable taking, the “court 

must determine whether the claimant has established a 

property interest for purposes of the Fifth Amendment.” 

Am. Pelagic Fishing Co. v. United States, 379 F.3d 1363, 

1372 (Fed. Cir. 2004). If the court concludes that a cognizable property interest exists, it then determines whether 

the governmental action at issue amounted to a compensable taking of that property interest. Acceptance Ins. 

Cos. v. United States, 583 F.3d 849, 854 (Fed. Cir. 2009). 

Property interests rely on the law of the state where the 
17 MILDENBERGER v. US

property is located, so Claimants’ citations of authorities 

from states other than Florida are irrelevant. See, e.g., 

Preseault v. United States, 100 F.3d 1525, 1534 (Fed. Cir. 

1996) (en banc) (determining property interests requires 

examination of the law of the state in which the property 

is located). Because Claimants’ alleged exclusive riparian 

rights are unrecognized under Florida law, we do not 

reach the issue of whether the release of water from Lake 

Okeechobee constituted a compensable taking of their 

property.

Florida law recognizes “several special or exclusive 

common law littoral rights: (1) the right to have access to 

the water; (2) the right to reasonably use the water; (3) 

the right to accretion and reliction; and (4) the right to the 

unobstructed view of the water.” Walton Cty. v. Stop the 

Beach Renourishment, Inc., 998 So. 2d 1102, 1111 (Fla. 

2008). As explained in Ferry Pass Inspectors’ & Shippers’ 

Ass’n v. White’s River Inspectors’ & Shippers’ Ass’n, “a 

riparian owner may use the navigable waters and the 

lands thereunder opposite his land for purposes of navigation and of conducting commerce or business thereon, but 

such right is only concurrent with that of other inhabitants of the state, and must be exercised subject to the 

rights of others.” 48 So. 643, 645 (Fla. 1909). Rights 

shared with the public are not compensable if taken, 

whereas the four exclusive littoral or riparian rights are. 

Claimants’ alleged riparian rights are not recognized 

by Florida law. The trial court correctly rejected Claimants’ assertion that they have a property right in viewing 

wildlife in the adjacent waters. Mildenberger, 91 Fed. Cl. 

at 242. Such a right is unsupported by any legal authority. The right to have access to the water refers to physical access to the edge of the water, not access to its full 

potential, including swimming and viewing wildlife. The 

right to view the water is intended to prevent obstructions 
MILDENBERGER v. US 18

and does not encompass a right to view aesthetically 

pleasing water. Although the polluted water allegedly 

required Claimants to clean their boats, experience fetid 

odors, witness dead and dying animals, and be exposed to 

harmful water, Claimants voluntarily dismissed their 

claims to upland damage. Claims of noxious odors and 

aerosols resulting from the Corps’ discharges do not 

constitute a physical taking of Claimants’ property. 

Claimants maintain that additional riparian owners’ 

rights were created by subsequent cases and statutes. 

Claimants argue that Board of Trustees of Internal Improvement Trust Fund v. Medeira Beach Nominee, Inc., 

established that “a police power regulation prohibiting 

swimming, fishing, or boating may be unchallengeable by

the public but constitute a taking with respect to a riparian.” 272 So. 2d 209, 214 (Fla. 2d. 1973). That case was 

about the well-established riparian owner’s right to 

accretion and did not set forth any new riparian rights 

analogous to the ones asserted by Claimants. Claimants 

also cite Florida statute § 253.141(1) (previously numbered § 197.228 (1983)) describing riparian rights as 

including “boating, bathing, and fishing.” In 1985, however, the Florida Supreme Court held that the statute is 

only “a tax law” and recognized that “[n]o case has ever 

held [that section] applicable as property law to riparian 

rights.” Belvedere Dev. Corp. v. Dep’t of Transp., 476 So. 

2d 649, 652-53 (Fla. 1985) (holding that the statute did 

not prohibit severance of riparian rights from riparian 

land). 

The trial court also determined that Claimants failed 

to identify any cases recognizing their compensable interest in having the water adjacent to their properties free of 

pollution. Mildenberger, 91 Fed. Cl. at 246. Two of the 

primary cases Claimants cite when arguing that pollution 

of water adjacent to their lands constitutes a taking are 
19 MILDENBERGER v. US

not even takings cases. The first case, Ferry Pass, was 

about a riparian owner’s ability to operate a business 

requiring use of the shoreline and listed “common-law 

rights” held by owners of land bordering navigable waters, including “the right to have the water kept free from 

pollution.” 48 So. at 645. Second, Claimants rely upon 

Harrell v. Hess Oil & Chem. Corp., 287 So. 2d 291 (Fla. 

1973). Harrell is distinguishable from this case because it 

concerned the pleading standards in class action lawsuits 

and merely held that riparian owners stated a claim for 

damages due to the discharge of sand and silt into the 

navigable creek adjacent to their properties. Id. at 295. 

In the present case, although Claimants may be experiencing the effects of pollution of a greater degree than the 

public, they are suffering the same injuries. The Court of 

Federal Claims correctly held that Claimants failed to 

establish any compensable property interests under 

Florida law and properly granted summary judgment for 

the Government. 

CONCLUSION

We affirm the Court of Federal Claims’ decision that 

it lacked jurisdiction over Claimants’ takings claims 

because they were filed outside the six-year limitations 

period pursuant to 28 U.S.C. § 2501 and Claimants failed 

to establish any compensable riparian property rights. 

Because Claimants failed to establish any compensable 

rights, we need not address whether such rights are 

subservient to the United States’ navigational servitude. 

AFFIRMED