The Mississippi Highway Commission wanted to build a road. That road was on wetlands, so it needed a permit from the U.S. Army Corps of Engineers. In order to convince the Corps to issue the permit, the Commission offered up 1,300 acres of land as wetlands mitigation. Problem was, these 1,300 acres didn't belong to the state, but were owned by Ward Gulfport. The Corps issued the permit, conditioned on the Commission acquiring the land from Gulfport.
Understandably, Gulfport wasn't happy. It had its own plans for what it wanted to do with its land, and those plans -- which included its own application for a wetlands permit -- went out the window, including (allegedly) some sales that fell through. So Gulfport brought a takings claim in state court, and challenged the permit in federal court. The federal court agreed with Gulfport's arguments and vacated the permit.
The state court, however, granted summary judgment to the Commission on the takings claim. Gulfport, in the court's view, had alleged the restrictions on its property were only temporary, which meant that the cloud which the Commission's actions placed over Gulfport's land was like a temporary moratorium on development, and thus more like Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002), than Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Moreover, it was the Corps that caused any taking, and not the Commission, according to the court.
The Mississippi Supreme Court didn't share that view, and in Ward Gulfport Properties, LP v. Mississippi State Highway Comm'n, No. 2014-CA-01-001-SCT (Oct. 22, 2015), concluded that Gulfport "never alleged the restriction was only temporary. Ward consistently argued the restriction was permanent, though ultimately cut short, and therefore constituted a categorical taking." Slip op. at 13. The court found that the Commission's intent was what mattered, and that from the beginning, it intended that the cloud on Gulfport's property to be permanent. It didn't turn out that way because the federal court invalidated the Corps' permit, but that was just fortune, and not intent. The court saw a distinction between a cloud that has an established expiration date and is thus a mere moratorium (Tahoe-Sierra), and a cloud that is possibly permanent, but is later invalidated. The latter is a First English situation, which means it could be a taking if what the plaintiff alleges is proven.
That being the case, the trial court should have allowed Gulfport to go forward and prove its allegations that the cloud which was (temporarily) on its land was either a Lucas wipeout, or a Penn Central ad hoc taking.
Ward Gulfport Properties, LP v. Mississippi State Highway Comm'n, No. 2014-CA-01-001-SCT (Oct. 22, 201...
