176 So. 3d 789
Miss.2015Background
- In 2009 the Mississippi State Highway Commission (MHC) applied to the Army Corps of Engineers (ACE) for a permit to fill wetlands for a proposed connector road and, at meetings with federal and state agencies, suggested using ~1,300 acres of land owned by Ward Gulfport Properties/T. Jerard Gulfport (Ward) as mitigation. ACE issued the permit conditioned on acquisition of ~1,638 acres of mitigation (including Ward’s property).
- After the permit issued, Ward’s pending development negotiations and permitting efforts stalled; Ward sued MHC in state court for inverse condemnation/taking and sued ACE in federal court to vacate the permit.
- The federal district court vacated ACE’s permit, finding ACE’s requirements exerted coercive force over MHC and that Ward’s injury was traceable to ACE’s action for standing purposes; ACE was the only defendant in that suit.
- MHC moved for summary judgment in the state case arguing (1) no cognizable taking occurred and (2) causation had been resolved by the federal ruling in ACE’s favor. The trial court granted summary judgment for MHC.
- The Mississippi Supreme Court reversed, holding Ward’s state claims were not barred by res judicata or collateral estoppel and that genuine issues of material fact existed as to (a) whether the permit effected a categorical taking (a permanent restriction cut short) and (b) whether a partial regulatory taking occurred under Penn Central, because MHC had suggested Ward’s land as mitigation and Ward adduced evidence of lost development, buyers, and damages during the permit period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preclusion: res judicata | Ward: federal suit against ACE does not preclude distinct state takings claim against MHC | MHC: permit litigation concerns same subject and cause, so claim-splitting | Not barred — parties/character may overlap but subject matter and cause differ; res judicata inapplicable |
| Preclusion: collateral estoppel | Ward: federal decision addressed ACE’s federal-law violations, not MHC’s causation for takings | MHC: federal ruling resolved causation, so issue precluded here | Not barred — issues actually litigated differ; federal court decided traceability to ACE for standing, not MHC’s role in causing a taking |
| Categorical taking (per se) | Ward: permit deprived all economically viable use of parcel (permanent restriction cut short by later vacatur) | MHC: restriction was temporary / no total taking; apply Penn Central | Trial court erred — factual dispute exists whether the permit functioned as a permanent restriction cut short, so categorical-taking question should have been analyzed for summary-judgment purposes |
| Regulatory (partial) taking under Penn Central | Ward: economic impact, lost investment-backed expectations (pending permits, buyers), and character of government action (MHC forced disproportionate mitigation) support a taking | MHC: ACE caused harm; Ward lacks proof of investment-backed expectations and damages | Trial court erred — Ward produced affidavits/depositions raising genuine disputes on economic impact, expectations, and MHC’s role; summary judgment inappropriate |
Key Cases Cited
- Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (establishes regulatory-takings principle that regulation "goes too far")
- Penn Central Transportation Co. v. New York City, 438 U.S. 104 (balancing test for regulatory takings: character of government action, economic impact, investment-backed expectations)
- Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (categorical per se taking where regulation eliminates all economically viable use)
- Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (temporary moratoria analyzed under Penn Central rather than as categorical takings)
- First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (compensation owed for period during which regulation unlawfully deprived property of use)