Mildenberger v. United States ( 2011 )

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 Depart-
ment of Justice, of Washington, DC, argued for defendant-
appellee. 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 Claim-
ants failed to establish that Florida law recognizes com-
pensable 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 con-
servation, 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 fresh-
water 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 brack-
ish 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 manage-
ment 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. Sup-
plemental Appendix (“S.A.”) 138. Releasing water from
the lake increases outflow to connected canals and wa-
terways, 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 ecosys-
tem acknowledge that sediment, phosphorous, and nitro-
gen 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 dam-
age 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 sedi-
ment 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 re-
lease of turbid fresh water through the canal seri-
ously affects sport fishing and other recreational
5 MILDENBERGER v. US
activities in the Stuart area; (2) during long dis-
charge periods the salt water in the St. Lucie
River is almost completely replaced by fresh wa-
ter; (3) the releases carry fine sands, fragments of
shell, and organic material into the St. Lucie es-
tuary, much of which is deposited in the Palm
City shoal; (4) an insignificant amount of sedi-
ment enters the estuary from uncontrolled drain-
age 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 floccu-
lent which settles to the bottom in places where
there are low current velocities and little turbu-
lence, 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 noncol-
loidal 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 dis-
charges 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 experi-
enced 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 numer-
ous 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 prop-
erty 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’ re-
leases 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 be-
tween 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 con-
tinuous 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 re-
leases 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 Govern-
ment’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 oc-
curred 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 long-
expired 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 wild-
life 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’ dis-
missal 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 ap-
plies and whether any mitigation promises prevented
accrual of the takings claims and then determine whether
Claimants established any compensable property inter-
ests under Florida law.
I.
A.
The Fifth Amendment of the United States Constitu-
tion ensures that the Government does not appropriate
private property for public use without just compensation.
See U.S. Const. amend. V. Compensable takings of pri-
vate 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 pro-
vides 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 Gov-
ernment’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 Novem-
ber 13, 2000.
Claimants argue that the stabilization doctrine ap-
plies in this case and supplants traditional accrual princi-
ples. 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 dis-
charges into the St. Lucie River.
The stabilization doctrine originated in United States
v. Dickinson, 331 U.S. 745 (1947). In Dickinson, a Gov-
ernment-constructed dam impounded water and raised
the river pool level in successive stages causing intermit-
tent—and eventually permanent— flooding of the respon-
dents’ 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 Gov-
ernment’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 con-
text. 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 [Dickin-
son] to the class of flooding cases to which it be-
longed, when the landowner must wait in
asserting his claim, until he knows whether the
subjection to flooding is so substantial and fre-
quent 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.” Colum-
bia 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 envi-
ronmental 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 non-
saline 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 “‘predict-
ability [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 landown-
ers did not know when or if their land would be perma-
nently 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 prop-
erty 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 predict-
ability 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 refer-
enced only mitigation efforts that commenced in the mid-
1990s, 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 activi-
ties. 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 docu-
ment 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 im-
prove 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 Reser-
voir 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 Flor-
ida law recognizes compensable property interests in the
riparian rights they allege were injured by the Govern-
ment. 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 adja-
cent to their properties. To determine whether the Gov-
ernment 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 cogni-
zable property interest exists, it then determines whether
the governmental action at issue amounted to a com-
pensable 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 naviga-
tion and of conducting commerce or business thereon, but
such right is only concurrent with that of other inhabi-
tants 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 Claim-
ants’ 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 author-
ity. The right to have access to the water refers to physi-
cal 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 Im-
provement 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 ripar-
ian.” 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 num-
bered § 197.228 (1983)) describing riparian rights as
including “boating, bathing, and fishing.” In 1985, how-
ever, 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 inter-
est 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 wa-
ters, 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 experi-
encing 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