At 10:30, Wednesday August 12, 2015, the Mississippi Supreme Court will hear Ward Gulfport Properties, LP and T. Gerard Gulfport LLC v. Mississippi State Highway Commission – a case arguing that the state’s having private property used as wetland mitigation is an inverse condemnation requiring compensation.
In 2007, the Mississippi State Highway Commission began the process of building a highway from Interstate I0 to the port of Gulfport. The highway was to go directly through much of the property of Ward Gulfport Properties, L.P. and T. Jerard Gulfport, L.L.C. The Highway Commission applied for a permit with the Army Corps of Engineers to fill wetlands in the Turkey Creek Watershed in the road bed of the connector road. The Commission pledged 1,637.9 acres-approximately 1,300 of which are owned by Ward -as wetland mitigation. The Corps issued the permit. According to the Appellants, as “soon as the Permit was issued, Ward lost all economically viable use of the land as it was pledged to MTC without any chance of outside development.” The Wards filed suit for inverse condemnation of the wetland mitigation property. Ward also filed suit in federal court against the Corps of Engineers seeking to have the Permit invalidated.
The federal court vacated the permit in 2012 based on the Corps’ failure to appropriately evaluate the lands pledged by the Transportation Commission. The Transportation Commission filed for summary judgment arguing the action should be dismissed because no taking occurred and because the federal court determined that the Corps, not the Transportation Commission caused any loss alleged by Ward. Ward appealed.
Among other things, the Highway Commission argues as follows:
Appellants could not identify any party that withdrew from negotiations to buy Appellants’ property because of the Permit, and did not claim the property could not be sold or used, but that the property could not be developed. Appellants admitted that no physical invasion of the property occurred and that Appellee never used or occupied the property after August 28, 2009. Further, Appellants admitted Appellee never prevented access to the property; never contacted any potential buyer of the property after August 28, 2009; and that any development of the property would require an application for a Section 404 Permit under the Clean Water Act.
Highway Commission’s brief
Ward’s reply brief
I just tuned in to find out that the listing of this case had been taken down.from the “oral argument webcasts” page some time after I posted this. I had to pull up the docket calendar to find this explanation:
“THIS ORAL ARGUMENT WAS CANCELLED BY LETTER DATED AUGUST 10, 2015 TO BE RE-SCHEDULED AT A LATER DATE”