Beach Erosion Caused by Jetties May Constitute a Taking

The latest in a long-running dispute between the U.S. Army Corps of Engineers and lake-front property owners in Michigan, whose beaches have allegedly been washed away because of jetties installed by the Army Corps long ago, is a ruling from the United States Circuit Court of Appeals for the Federal Circuit that the takings’ claims are not barred by the statute of limitations. Banks v United States, Docket 2012-567 (Fed Cir. Jan. 28, 2014).

“Appellants are landowners along approximately four and one-half miles of the eastern shore of Lake Michigan, south of the jetties. This shoreline is eroding naturally, but Appellants allege the jetties block the flow of sand and sediment from the river and the lakeshore north of their properties. Specifically, they argue that the structures interrupt the natural littoral drift within the lake, leading to increased erosion on their properties, amounting to an unlawful taking under the Fifth Amendment.” [slip op. at 3].

Given the fact that the Army Corps’ work constructing harbor jetties on Lake Michigan began in the 1800s, it is no wonder that the United States argues that the property owners’ claims were barred by the statute of limitations.  But, the most recent project began in 1950 and was not completed until 1989, and the affect of that project was not discovered by the property owners until an impact report issued in 1999, which is when this litigation commenced.  The circuit court specifically held that the claims did not accrue until 1999.

That said, in light of the proposed wave of dune replenishment projects scheduled to commence along the Jersey Shore, it will be interesting to see how the Lake Michigan property owners’ claims fare on remand.

We’ll keep you posted.