Daily Development for Monday, March 15, 1999

by: Patrick A. Randolph, Jr.
Professor of Law, UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

GOVERNMENTAL DAMAGE TO PROPERTY; POLITICAL QUESTION: The political question doctrine is not a bar to landowners' claims for injunctive and monetary relief for beach erosion allegedly caused by a state-managed fish pass.

Gordon v. Texas, 153 F.3d 190 (5thCir. 1998).

The State of Texas constructed a fish pass after obtaining a permit from the U.S. Army Corps of Engineers. Beachfront property owners near the fish pass brought suit in federal court claiming that the pass contributed to dramatic erosion problems on their property. The District Court dismissed plaintiffs' claims on the ground that the claims raised a nonjusticiable political question. The Court of Appeals here reversed.

The political question doctrine prevents courts from adjudicating those questions whose resolution is committed by the Constitution to another branch of government. Thus, before there can be a political question there must be 'the potential for a clash between a federal court and other branches of the federal government... a simple conflict between a federal court and state agencies does not implicate the doctrine" (emphasis added).

Here, plaintiffs (in addition to a 140 million dollar damages claim) requested that the state fill in the fish pass and provide some additional beachfront restoration. The court opined that such relief would require little federal involvement other than the issuance of a permit by the Army Corps of Engineers. The political question doctrine does not bar claims for injunctive relief, such as these, that are directed primarily at state or private entities and that do not conflict with any significant federal policies.

The doctrine also does not bar plaintiffs' claims for monetary damages. These claims are "judicially manageable" and do not require the court to dictate policy to federal agencies.

Comment 1: Although the editor claims no expertise about justiciability issues, if the question here is whether the federal courts are interfering with matters entrusted to another branch of the federal government, shouldn't there be an inquiry into whether the Corps of Engineers, in originally reviewing and approving the fish pass, made an evaluation of the factual underpinnings of plaintiff's erosion claim and whether it concluded that such claim was either unfounded or outweighed because of appropriate public policy? If the Corps of Engineers did make such determination (and one assumes that it would have done so through federal environmental analysis requirements), then don't we have a dispute between the judgment of the Corps and the judgment of the courts?

Isn't this case more like the California decision that concluded that evaluation of electromagnetism risks associated with location of electric transmission towers was entrusted to the California Public Utilities Commission, and not to the state courts?

Comment 2: For that matter, aside from takings arguments, didn't plaintiffs have their opportunity (and obligation) to muster whatever opposition to the fish pass before the state and federal agencies that already approved it? What role is the court performing in running over these questions again?

Comment 3: In any event, since when does a court enjoin a government entity - here the State of Texas - from conducting activities that are plainly within its constitutional authority? Isn't plaintiffs' remedy, if anything, a suit based on a taking theory? The court cites no discussion of any argument that the fish pass was not an activity statutorily authorized to be conducted by the Texas state agency that built it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.