## 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 & Natu ral Resources Division, United States Department of Justic e, 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

## 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. Additio nal View filed by Circuit Judge , RADER. RADER, Circuit Judge

. The United States Court of Federal Claims dismisse d the Northwest Louisiana Fish & Game Preserve Commission’s Fi fth 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 co rrectly determined that the Commission’s property interest arose from access to and use of a navigable waterway, this court affirms.I. The Red River rises in the Texas pa nhandle and flows east along the TexasOklahoma and Texas-Arkansas bo rders, then south into Louisiana, eventually emptying into the Atchafalaya and Missi ssippi Rivers. The State of Louisiana built the Allen Dam to maintain water levels and prevent backw ater flooding of the Red River. The Allen Dam created three lakes: Bla ck Lake, Clear Lake, and Sa line Lake. Black Lake and Clear Lake are connected. In fact, the loca l community often calls them the Black/Clear Lake. In 1926, the State of Louisiana establis hed the Northwest Louisiana Fish & Game Preserve Commission (“Commission”) to enhance wildlife and fishery habitat and recreational opportuniti es in the area. The Saline Bayou tributary connects Bla ck/Clear Lake to the Red River. Water released from Black/Clear Lake flows th rough Saline Bayou for ten miles before emptying into the Red River. In the past, t he Commission controlled fish population and aquatic vegetation growth in Bl ack/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 t he Red River. The project increased water depths along the Red Rive r by constructing five lock and dam combinations at various points along the rive r. The area of the Red River between each successive lock and dam combination constitu tes 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 La ke to the area of the Red River that constitutes Pool 3. Before the locks, the United States Army Corps of Engineers

2008-5039 2(“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 le vel at that point in the river directly affects the draw down potential of the Sali ne Bayou and hence, Black/Clear Lake. In 1982, the Allen Dam failed. In res ponse, the State cons tructed an emergency closure to prevent the total drainage of Bla ck/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 orfuture activities undertaken by or on behalf of the United States in the public interest.” After construction of the Black/ClearLake 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 v egetation. Using this procedure, the Commission maintained acceptable levels of fi sh and plant growth in Black/Clear Lake. The last scheduled draw down of Black/Clear Lak e 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 leve l. 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 aquat ic growth. The uncontrolled growth of aquatic weeds began to cause signi ficant damage by early 1995.

2008-5039 3In 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 c ontrol the growth of unwanted vegetation. The Corps denied the Commission’s request. By early 1997, severe hydrilla and coontail infestat ion began to occur, allegedly making some parts of the Lake useless for recreation. The Commission has been seeking redr ess since 1997 for the alleged condemnation of the preserve as a result of the United States’ construction and operation of the Red River Navi gational Project. The Commissi on first filed a complaint in state court, which was subsequently remo ved to federal court and dismissed. The dismissal was appealed to the Fi fth Circuit, where that cour t 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 Commi ssion 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 ma tter 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 statut e of limitations. Id. at 768. The Commission then appealed to the Federal Circuit. This court reversed the C ourt of Federal Claims, holding that the statute of limitations did not begin to run until 1997, after the appearance of significant

2008-5039 4growth of aquatic weeds in Black/Clear Lak e 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 October31, 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 Co urt of Federal Claims enter ed 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 underits Rule 54(b). The Commission timely appealed to this Court. On appeal, the Commission submits that the Court of F ederal 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 C ourt of Federal Claims’ dismissal of a complaint for lack of jurisdiction or failure to state a claim. Samish Indian Nation v.

2008-5039 5United States , 419 F.3d 1355, 1363 (Fed Cir. 2005). When considering a motion to dismiss, the trial court views well-pleaded fact ual 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 compensatio n.” 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 A ss’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 inte rests are legally protected property rights. “[O]nly those economic [interests] are ‘right s’ which have the law [in] back of them, and only when they are so rec ognized may courts compel others . . . to compensate for their invasion.” Id. at 502. The Commerce Clause confers upon Cong ress “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

2008-5039 6that as against the Government such priv ate interest is not a right at all.” Willow , 324 U.S. at 510. An interest t hat “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 consider ed public property. Owen v. United States , 851 F.2d 1404, 1408 (Fed. Cir. 1998) (en ban c). This court has acknowledged the extraordinary priority given to navigabl e waters, noting that they are under the “exclusive control of t he 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. T he Supreme Court has explained that the proper exercise of the Government’s dominant servitude in these areas does not constitute an invasion of any privat e property right in such lands for which the United States must make compensation. The damage sustained results not from a taking of the riparian ow ner’s property in the st ream bed, but from the lawful exercise of a power to whic h 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 competi ng or conflicting one.” United States v. Twin City Power Co. , 350 U.S. 222, 224-25 (1956).

2008-5039 7III. 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 “whetherthe conflict is with another private riparian interest or with a public interest in navigation.” Id. In Willow , a hydroelectric plant that operated under t he head produced by the elev ation difference between the Willow River and the St. Croix River sought co mpensation for impaired efficiency of its plant after the Government raised the water le vel 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 Will ow River was a navigable river and the conflict did not arise between private ripari an 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 intere st “constituted a privilege or a convenience, enjoyed for many years, permi ssible so long as compatible with navigation interests, but it is not an inte rest protected by law when it becomes

2008-5039 8inconsistent with plans authorized by C ongress 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 Will ow Power’s interest arose from access to a navigable waterway. Id. at 511. On appeal, Appellants argue t hat their property interest does not fall within the Government’s servitude for two principle reasons: (1) Saline Bay ou is not a navigable waterway and (2) Black/Clear Lake is simply outside of the navigational servitude. First, regardless of the navigability of the Sali ne 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 incr ease 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 F ederal Claims correctly concluded: to the extent the [appellant] bases its takings claim on the ability to drain from Black/Clear Lake into the Red Rive r, which requires the elevation of the Red River to be below a certain level, the plaintiff’s property interest is subservient to the nav igational servitude. Nw. La. Fish & Game Pres. Comm’n v. United States , 79 Fed. Cl. 400, 411 (2007). Because the Commission’s interest is subs ervient to the Government’s dominant servitude, it is not compensab le under the Fifth Amendment.

2008-5039 9Turning to the Appellant’s second ar gument, the Government’s navigational servitude does not create a blanket ex ception to Fifth Amendment takings. See Kaiser Aetna v. United States , 444 U.S. 164 (1979) (considering whether there was a physical invasion). The servitude encom passes 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 Co rp. 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 Gove rnment 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 porti ons 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 nav igable waters, this court concluded that a compensable taking had occurred, even t hough the water had not been raised above its OHWM and was therefore technically withi n 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 . . . . Ther e must also be horizontal limits to the “bed” of a river; otherwise, the navigationa l servitude would extend

2008-5039 102008-5039 11 infinitely in all directions and swallo w 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 unw anted 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 assert s a taking of its ability to draw down Black/Clear Lake in order to control unwan ted aquatic weed growth, that interest is subservient to the Government’s navigationa l servitude. Because the Court of Federal Claims properly dismissed the Commission’ s claim as barred by the navigational servitude, this court affirms. AFFIRMED

## 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 result s 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 di fferent treatment of navigation versus other Fifth Amendment public purposes. Why should navigation be received any differently than highway trans portation, public safety, or environmental protection? In light of t he special protections afforded to navigation, it seems only prudent that such a material basis be provided.