SandBar 7:1, Regulatory Takings Issue, April, 2008

Corps Liable for Shoreline Erosion on Lake Michigan

Banks v. United States, 78 Fed. Cl. 603 (Ct. Cl. 2007).

Terra Bowling, J.D.

In a takings case arising from coastal erosion on Lake Michigan caused by an Army Corps of Engineers project, the U.S. Court of Federal Claims has ruled that the government is responsible for 30 percent of each plaintiff’s property loss above the mean high water mark.

Background
Between 1950 and 1989, the Corps performed construction and maintenance on harbor jetties around the mouth of St. Joseph River to accommodate commercial shipping. After the lake­ shore south of the jetties began to erode, the Corps began a beach renourishment program in the 1970s; however, the project proved ineffective.
      In 1999, property owners affected by the erosion filed suit against the United States, alleging that the Corps’ activities caused erosion of their shoreline property and resulted in a taking under the Fifth Amendment. After the trial on liability in June 2007, the U.S. Court of Federal Claims had to consider whether the government’s renourishment efforts compensated for the effects of the jetties enough to show that the erosion was not attributable to the government.

Liability
The court first looked at whether the jetties affected plaintiffs’ properties. The court found that the plaintiffs’ properties were affected by the jetties, citing a 1958 study as well as Corps reports attributing 30 percent of the total erosion to the jetties.
      To determine whether the renourishment project was effective, the court looked at the adequacy of nourishment material used by the Corps, the sediment transport rate, and the effective placement of nourishment material. The court first found that the plaintiffs failed to prove that their properties were located on a cohesive lake bottom, meaning that the property damage would not be analyzed as permanent and irreversible. Next, the court found that the sediment used by the Corps in the renourishment process was the inappropriate size and was ineffective. Therefore, that portion of the renourishment program was not credited as mitigation to the Corps. The court next looked at the sediment transport rate, including the net littoral drift and the various factors affecting the net southerly littoral drift, to determine how much sediment was affected by the jetties. Finally, in looking at the effective placement of the nourishment material, the court found “by a preponderance of credible evidence” most of the nourishment was placed in a way that would replenish the plaintiffs’ property.
      The court considered additional arguments regarding the Corps’ liability. The plaintiffs argued that revetments constructed by the Michigan Department of Transportation and Chesapeake and Ohio Railway Company to stop erosion resulted in further erosion to their property and was attributable to the Corps’ restoration project. The court found that the plaintiffs failed to prove that the Corps caused direct injury to the plaintiffs through the building of the revetments.  Although the plaintiffs also argued that the impermeable nature of the jetties contributed to erosion, the court found that the property owners failed to prove that the jetties were impermeable. Finally, the plaintiffs argued that although Lake Michigan is lowering, the plaintiffs would still suffer erosion because the lakebed was lowering due to sand deprivation. The court noted that owners failed to prove that the lowering of the water level was due to human intervention.
Holdings
Through exhaustive testimony and reports, the court found that the Corps did not mitigate erosion that it caused by dumping dredged sand into deep water before 1970. The court concluded that the Corps was responsible for 30 percent of the unmitigated erosion above the high water mark occurring after each owner’s acquisition of the property from 1950 to 1970. The court then turned to liability for erosion caused after 1970.
      While the court found that the court had mitigated erosion since 1970, it also found that the coarse material it used was not effective for mitigation. Therefore, the court was liable for damages of for any portion of 30 percent of each plaintiff’s total erosion above the high water mark since 1970 and after each owner’s acquisition of the property. Additionally, the Corps is liable for 30 percent of all reasonably foreseeable future loss. Finally, the court held that the Corps was liable to plaintiffs with property at the northernmost end of the plaintiffs’ zone. Because the property in this area was found to be permanent and irreversible, the Corps was liable for 30 percent of total erosion above the ordinary high water mark that occurred after plaintiff’s acquisition of the property after 1950, as well as any reasonably foreseeable future loss.

Conclusion
The case will next move to the damages phase, in which the government will determine the appropriate payments for each plaintiff.