Murky Waters: Florida Rock Revisited

A recent decision of the Federal Circuit Court of Appeals- Florida Rock Industries, Inc. v. United States, Nos. 85-2588, -2609 - vacated and remanded a 1985 claims court decision holding that the Army Corps of Engineers' denial of a Clean Water Act §404 permit has deprived a mining company of all reasonable economic uses of its land and thus constituated a "taking" of private property for which just compensation was due. The appellate court ruled that the trial judge had erred: (1) by raising jurisdicitional issues on his own and (2) by substituting an immediate use test for fair market value when determining whether the permit denial deprived the company of substantially all economically deasible use of its property. That the Federal Circuit vacated the takings ruling is particularly significant since the claims court decision represented the only deferal court ruling to hold squarely that Corps denial of a §404 permit resulted in a taking in violation of the Fifth Amendment of the Constitution.