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. e du/thir dc ir c uit_1996/112UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

Nos. 95-3237 & 95-3296

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UNITED STATES OF AMERICA

v.

30.54 ACRES OF LAND,
MORE OR LESS, SITUATED IN GREENE COUNT Y,

COMMONWEALTH OF PENNSYLVANIA

James V. Filiaggi and Josephine Filiaggi, Husband and Wife, Lawrence E. Fi liaggi and Helen Filiaggi, Husband and Wife, and L&J Equipment Company, Inc., Appell ants*

*Pursuant to Rule 12(a), F. R.A.P.

__________________________________________ _____

On Appeal from the United States District Court for the Western District of Pennsylvan ia (D.C. Civil Action No. 92-cv-00033)

___________________

Argued June 4, 1996

Before: SCIRICA and ROTH, Circuit Judg es and O'NEILL, District Judge*

(Filed July 24, l996)

LAWRENCE G. ZURAWSKY, ESQUI RE (ARGUED) Zurawsky & Keck
428 Forbes Avenue 415 Lawyers Building Pittsburgh, Pennsylvania 15 219

*The Honorable Thomas N. O'Neill, Jr., United State s District Judge for the Eastern District of Pennsylvania, sit ting by designation.MICHAEL D. DeMARCO, ESQUIRE

DeMarco & Associates
707 Grant Street
946 Gulf Tower Pittsburgh, Pennsylvania 15 219

Attorneys for Appellants

JACQUES B. GELIN, ESQUIRE ( ARGUED) United States Department of Justice
P.O. Box 23795
L'Enfant Plaza Station Washington, D.C. 20026

BONNIE R. SCHLUETER, ESQUIR E
Office of the United States Attorney
633 United States Post Offi ce & Courthouse Pittsburgh, Pennsylvania 15 219

Attorneys for Appellee

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OPINION OF THE COURT

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SCIRICA, Circuit Judge.

The United States Army Corps of Engineers prohibited the use of the landowners' coal loading facility an d coal tipple because they posed a danger to navigation on the Mo nongahela River. The landowners now seek just compensation f or the deprivation of the use of their property under the Fifth
Amendment to the Constitution and Section 111 of th e River and Harbors Act of 1970, 33 U.S.C.  595a (1988). Because the navigational servitude was a preexisting limitation on the landowners' title to riparian land, we hold the Cor ps' exercise of the servitude to prohibit the use of the landown ers' property was not a taking under the Fifth Amendment or Secti on 111. I. Background James Filiaggi and others (the "landowners ") owned 132.55 acres on the Monongahela River in Greene Cou nty, Pennsylvania. A coal loading facility was located on the tract, and a coal tipple, grounded on the property, extend ed approximately one hundred feet into the Monongahela River. The tipple and coal loading facility have been used for loading coal into barges since 1914. On January 7, 1992, in connection with the Grays Landing Lock and Dam Project, the United States, on behalf of the Army Corps of Engineers, filed a complaint and decl aration oftaking in the United States District Court for the Western

District of Pennsylvania. The United States acquir ed 30.54 acres of the landowners' tract at a cost of $86,700. The Government did not acquire the remaining 102 acres of the trac t on which the coal loading facility was located and on which the tipple was grounded. Although the United States acquired neithe r the coal loading facility nor the tipple, the Army Corps of Engineers subsequently prohibited their operation. The Corps of Engineers

concluded: the loading and unloading of the barges at the tipple site will [create a hazard to navigation]. Due to the close proximity o f the tipple to the lock and dam (approximat ely 1,000 ft.) the operation of the coal loadi ng facility poses a safety hazard to the rive r boat pilots who would be required to maneu ver in and about it and about the danger zone of the lock and dam. The operation of the facility also poses a hazard to the operat ion of the lock and dam. Specifically, if a barge or a river boat were to break away, there would be little if any response time to prevent it from going over the dam or caus ing damage thereto. The Corps of Engineers is responsible for the control and regulation of the navigation of the Monongahela River. It will not permit coal loading operations to continue in the area of the tipple. App. at 47-48. The landowners sought over $300,000 in com pensation for the loss of the use of the tipple, coal loading fac ility, and the remaining 102 acres in the district court. They ar gued the Government's prohibition on the use of the tipple a nd coal loading facility resulted in a taking by depriving them of all economically reasonable use of their remaining 102 acres. SeeLucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992 ). They also argued that Section 111 of the River and Harbors Act mandates a determination of compensation for the re maining tract based upon its use as a coal loading facility for b arges. On the United States' motion for summary j udgment, the
district court held that the United States did not take the landowners' property by prohibiting the use of the tipple and coal loading facility. See Memorandum Opinion, Uni ted States v. 30.54 Acres of Land, More or Less, Situated in Gree ne County, Commonwealth of Pennsylvania, No. 92-33, slip op. a t 5 (W.D. Pa. March 15, 1995). Rather, it concluded, the United States had regulated the use of a navigable river under the "n avigational" servitude, and although economic loss resulted, no compensation
was due. Id. at 5-6. The district court also held that Section 111 of the River and Harbors Act does not apply to regulation of navigable waterways under the navigational servitud e, id. at 7,
and therefore the landowners were not entitled to c ompensation. The district court had jurisdiction over t his eminentdomain action under 28 U.S.C.  1358. We have jurisdiction over

final orders of the district court under 28 U.S.C.  1291. Our review of the district court's gr ant of summary judgment is plenary. Western United Life A ssur. Co. v. Hayden, 64 F.3d 833, 837 (3d Cir. 1995).
II. Discussion A. The "Navigational Servitude" and Comp ensation for Takings of Riparian Land
The Fifth Amendment to the United States C onstitution requires the payment of just compensation for priva te property taken for public use. U.S. Const. Amend. 5. But t he United States is not constitutionally required to pay for economic losses resulting from the exercise of its "navigati onal" servitude--its power to regulate the use of navigab le waterways-- because navigable waterways have always been under the exclusive control of the federal government under the Commerc e Clause. As stated by the Supreme Court in United States v. Ran ds, 389 U.S. 121 (1967): The Commerce Clause confers a unique posit ion upon the Government in connection with navigable waters. . . . [T]hey are the pub lic property of the nation, and subject to all the requisite legislation by Congress. Th is power to regulate navigation confers upon the United States a "dominant servitude," whic h
extends to the entire stream and the strea m bed below the ordinary high-water mark. T he proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners withi n the meaning of the Fifth Amendment but fro m the lawful exercise of a power to which th e interests of riparian owners have always b een subject. Thus, without being constitutionally obligated to pay compensation, the United States may change the course of a navigable stream or otherw ise impair of destroy a riparian owner's acces s to navigable waters, even though the marke t value of the riparian owner's land is substantially diminished. Id. at 122-23 (citations omitted); see also Owen v. United States, 851 F.2d 1404, 1408 (Fed. Cir. 1988). The navigational servitude does not reliev e the Government of its obligation to pay just compensati on for takings of fastlands above the high-water mark. But the Co nstitution "permits the Government to disregard the value aris ing from [the] fact of riparian location in compensating the owner when fast lands are appropriated." United States v. Rands, 3 89 U.S. at 123-24. The value of land that arises from its rip arian location "does not inhere in these parcels," "but depends on use of water to which the [landowner] has no right as against th e UnitedStates." Id. at 124.

Congress can, of course, provide relief wh ere the exercise of the navigational servitude causes econo mic loss, even though the United States is not constitutionally re quired to pay compensation. One instance of congressional action to grant such
relief is Section 111 of the River and Harbors Act of 1970, 33

U.S.C.  595a. Section 111 provides that in cases of takin gs of above the high-water mark real property, just compe nsation will be calculated on the basis of a tract's riparian lo cation, even though United States v. Rands makes clear that the Constitution does not require consideration of the tract's locat ion. Section 111 provides, in relevant part: In all cases where real property shall be taken by the United States for the public use in connection with any improvement of rive rs, harbors, canals, or waterways of the Unite d States, and in all condemnation proceeding s by the United States to acquire lands or easements for such improvements, the compensation to be paid for real property taken by the United States above the norma l high water mark of navigable waters of the
United States shall be the fair market val ue of such real property based upon all uses to which such real property may reasonably be put, including its highest and best use, a ny of which uses may be dependent upon access to or utilization of such navigable waters.
33 U.S.C.  595a. While Section 111 alters the method of calculation of just compensation for takings of abo ve high-water mark riparian land, it does not alter the underlyin g determination of what constitutes a taking under th e Fifth Amendment. Nor does Section 111 alter any other as pect of established law on the navigational servitude. B. Takings under Lucas v. South Carolina Coastal
Council The landowners argue that the Government's prohibition on the use of the tipple and coal loading facility stripped the 102 acres remaining in their possession of all econ omically reasonable uses. Relying on Lucas v. South Carolin a Coastal Council, 505 U.S. 1003 (1992), they assert that thi s prohibition constituted a taking under the Fifth Amendment. Lucas established that economic regulation s can result in a taking, even though the Government does not fo rmally condemn property. "[W]hen the owner of real property has b een called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property eco nomically idle, he has suffered a taking." Id. at 1019 (emph asis in original). But Lucas also noted that when "the log ically antecedent inquiry into the nature of the owner's e state shows that the proscribed use interests were not part of his title to begin with," id. at 1027, regulations proscribing s uch uses do not result in a taking. The Supreme Court explicitly recognized th enavigational servitude as a pre-existing limitation on riparian

landowners' estates. See id. at 1028-29 (citing th e navigational servitude as a case when "we assuredly would permit the government to assert a permanent easement that was a pre-existing limitation upon the landowner's title.") (emphasis in original). Because the navigational servitude is a pre-existin g limitation on the title of riparian property--indeed the limit ation is almost as old as the republic itself, see Gibbons v . Ogden, 22 U.S. (9 Wheat) 1, 189-193 (1824)--exercise of the s ervitude cannot constitute a taking, even where it deprives a landowner of all economically reasonable use of his land. Unite d States v. Cherokee Nation of Okla., 480 U.S. 700, 704 (1987) ("the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment bu t from the lawful exercise of a power to which the interests o f riparian owners have always been subject"); United States v. Rands, 389 U.S. at 122 (same). Accordingly, even were the lan downers to establish that the Government's prohibition on the use of the tipple and coal loading facility deprived them of a ll economically reasonable uses of their land (and the y have not yet established this fact), there was no taking. From the time the tipple and coal-loading facility commenced operatio n in 1914, the landowners' right to operate them was subject to th e navigational servitude and the possibility that the Government m ight exercise the servitude to prohibit their use. Exercise of t he servitude did nothing more than realize a limitation always i nherent in the landowners' title. It was not a taking.
C. Section 111 of the River and Harbors A ct of 1970 The landowners argue that Section 111 of t he River and Harbors Act of 1970, 33 U.S.C.  595a, requires the Government to compensate them for the prohibition on the use of t he tipple and coal loading facility. They note that Section 111 applies to condemnation proceedings and to "cases where real p roperty shall be taken . . . for the public use in connection wit h any improvement of rivers." They assert the Government 's prohibition on the use of the tipple and coal loading facility was a "taking" within the meaning of Section 111. There is no reason to suppose that Congres s referred to takings in Section 111 in any other than a constitu tional sense. As discussed, the Government's exercise of the navi gational servitude to prohibit the use of the tipple and coa l loading facility was not a taking under the Fifth Amendment

. Accordingly, it would appear that Section 111, by i ts terms, does not apply. In any event, Section 111 only applies to "real property taken by the United States above the high water mark." Here the United States did not acquire above the hi gh-water mark real property (other than the original 30.54 acres) ; rather, it prohibited use of the tipple--a structure jutting o ne hundred feet into a navigable waterway. Section 111 does n ot require compensation for prohibition of the use of such a s tructure. Cf.United States v. Certain Parcels of Land, Etc. (City of Va ldez), 666 F.2d 1236, 1238 (9th Cir. 1982) ("private impro vements connected to fastlands but located in the navigable waters may bealtered or removed by the Government to improve nav igation

without compensating the owner"). The landowners also argue that Section 111 "was adopted to limit or abrogate the harsh provisions of the ea rlier doctrine of the `navigational servitude,'" and therefore the navigational servitude does excuse payment of just compensation. But Congress did not express an intent to abolish the navigation al servitude or to provide compensation for all economic losses occasioned by regulation of navigable waterways. The legislative history of Section 111 indicates that Congress intended to mod ify the rule of United States v. Rands only to the extent of pay ing full compensation based on riparian location in cases of actual acquisition of above the high-water mark real prope rty. Section 111 "makes no change in existing law" with respect to other aspects of the navigational servitude. H. R. Rep. No. 1665, 91st Cong. 2d Sess. 30-31 (1970). We will not alter lon g-established law or abridge the navigational servitude in the ab sence of explicit legislation from Congress.
III. Conclusion The Government's exercise of the navigatio nal servitude to prohibit use of the tipple and coal loading faci lity did not result in a taking of the landowners' property. Th e navigational servitude was always a limitation inherent in the l andowners' title, and therefore exercise of the servitude was not a taking. Nor was there a taking within the meaning of Section 111 of the River and Harbors Act. Its provisions d o not apply. We will affirm the judgment of the district court.