             In the United States Court of Federal Claims
                                           No. 14-180L

                                       (Filed: May 15, 2017)

 **********************************
                                               )     Claim of uncompensated taking; dredging
 DONALD L. PELLEGRINI, et al.,                 )     of navigable river allegedly the but-for
                                               )     cause of collapse of support of land and
                        Plaintiffs,            )     installations along banks; no jurisdiction
                                               )     over due process claim; disputed issues of
        v.                                     )     material fact regarding takings claim
                                               )
 UNITED STATES,                                )
                                               )
                        Defendant.             )
                                               )
 **********************************

       G.J. Rod Sullivan, Jr., Sullivan & Company, Jacksonville, Florida, for plaintiffs.

       Stephen Finn, Trial Attorney, Environment & Natural Resources Division, United States
Department of Justice, Washington, D.C., for defendant. With him on the briefs were Robert G.
Dreher, Acting Assistant Attorney General, Sam Hirsch, Acting Assistant Attorney General, and
John C. Cruden, Assistant Attorney General, Environment & Natural Resources Division, United
States Department of Justice, Washington, D.C. and Sheldon G. Shuff and Susan E. Symanski,
Assistant District Counsel, United States Army Corps of Engineers, Jacksonville District,
Jacksonville, Florida.

                                      OPINION AND ORDER

LETTOW, Judge.

        Plaintiffs, Donald and Brenda Pellegrini and Anne Ebel, bring suit against the United
States (“the government”), alleging that the government, acting through the United States Army
Corps of Engineers (“Army Corps”), committed an uncompensated taking of their property in
contravention of the Fifth Amendment. Plaintiffs’ property in Jacksonville, Florida is adjacent to
the St. Johns River, where the Army Corps has been conducting dredging activities to improve
the navigability of the river since 1869. Plaintiffs allege that the Army Corps’ recent dredging of
the St. Johns River has resulted in a loss of support along the banks of the river, which has
allegedly caused their seawall, docks, boathouses, and adjacent structures to collapse.

        Pending before the court is the government’s motion to dismiss plaintiffs’ complaint in
part for failure to state a claim upon which relief can be granted, or, in the alternative, for
summary judgment, and for a more definite statement. For the reasons stated, the government’s
motion to dismiss is granted with respect to plaintiffs’ due process claim, but its motion to
dismiss plaintiffs’ takings claim, alternative motion for summary judgment, and request for a
more definite statement are denied.

                                        BACKGROUND

                               A. Dredging of the St. Johns River

        The events underlying this dispute relate to the Army Corps’ dredging of the St. Johns
River in Jacksonville, Florida. See Compl. ¶¶ 3, 5-6. The St. Johns River “rises in east-central
Florida,” flowing “northerly for 257 miles to Jacksonville . . . and thence easterly 28 miles in a
winding course to the Atlantic Ocean.” Def.’s Mot. to Dismiss, in Part, or, in the Alternative, for
Summary Judgment, and for a More Definite Statement (“Def.’s Mot.”), Ex. 2 (Letter from the
Secretary of War to the Chairman of the United States Senate Committee on Commerce, S. Doc.
No. 79-179 (1946) (“S. Doc. No. 79-179”)) at 2, ECF No. 6-3.1 The government has
demonstrated an interest in the navigability of the St. Johns River since 1869, and the river has
been the subject of many navigability reports and projects. Def.’s Mot., Ex. 1 (U.S. Army Corps
of Engineers, Jacksonville Harbor Duval County, Florida Navigation Study, Final Feasibility
Report (Sept. 1998) (revised Nov. 4, 1998) (“Feasibility Report”)) at 4-6, ECF Nos. 6-1 & 6-2;
see also S. Doc. No. 79-179 at 9.

        Relevant here, the government has specifically sought to improve the navigability of the
river “from Jacksonville to the Atlantic Ocean for deep draft commercial vessels.” Feasibility
Report at 4. In its original condition, that segment of the river contained depths of approximately
“12 feet at mean low water.” Def.’s Mot., Ex. 3 (Annual Report of the Chief of Engineers,
Extract, Report Upon the Improvement of Rivers and Harbors in the Jacksonville, Fla., District
(1922)) at 776, ECF Nos. 6-3 & 6-4. In 1895, a completed navigation project resulted in “a
dredged channel with depths generally of 15 feet over the bar and 18 feet in the river to
Jacksonville.” Def.’s Mot., Ex. 4 (Letter from the Secretary of the Army to the United States
House of Representatives Committee on Public Works, H.R. Doc. No. 89-214 (1965) (“H.R.
Doc. No. 89-214”)) at 13, ECF No. 6-4. By 1946, 23 miles of the 28-mile segment between
Jacksonville and the Atlantic Ocean had been “dredged to provide a continuous depth of 30 feet
or more at local mean low water,” with “the remaining 5 miles hav[ing] natural depths of 30 feet
or over.” S. Doc. No. 79-179 at 5. However, navigability remained difficult and dangerous,
particularly at Dames Point, a bend at Clapboard Creek, and a bend at St. Johns Bluff. See id. at
23-24. The government addressed these concerns by dredging a 34-foot “cut-off channel” below
Blount Island that stretched “from St. Johns Bluff (Fulton) to Dame Point,”2 dredging the main
channel to 34 feet, and proposing further dredging of the river to 38 feet. See H.R. Doc. No. 89-
214 at 13-14, 24. Plaintiffs’ properties, which are adjacent to the St. Johns River on Ramoth


       1
         The government filed a corrected version of the motion, to address minor typographical
errors, ECF No. 14. Citations to the government’s brief will therefore refer to that corrected
version. The government’s exhibits remain attached to its original motion, ECF No. 6.
       2
         A channel already existed to the north of Blount Island, but it was not frequently used
after the government conducted the dredging of the channel below Blount Island. See H.R. Doc.
No. 89-214 at 14.
                                                 2
Drive in Little Marsh Island, see Compl. ¶¶ 1-2, 5; Def.’s Mot., Ex. 5 (St. Johns River Vicinity
Map) at 002017, ECF No. 6-5, are located east of Blount Island in close proximity to St. Johns
Bluff, Clapboard Creek, and the two channels surrounding Blount Island. A navigational chart
provides an illustration of the relevant portion of the St. Johns River in its present state:




National Oceanic and Atmospheric Administration, Office of Coast Survey,
http://www.charts.noaa.gov/OnLineViewer/11491.shtml.

        In 1998, the Army Corps proposed channel realignment and construction within the St.
Johns River, see Feasibility Report at 7-8, including deepening the river to 39 feet at cuts 40 to
41, id. at 52-53, which plaintiffs allege is adjacent to their property, Compl. ¶ 5. Congress
thereafter authorized a navigation project in the Jacksonville Harbor, including the St. Johns
River, through the Water Resources Development Act of 1999, Pub. L. No. 106-53, §
101(a)(17), 113 Stat. 269, 276. Pursuant to that authority, in March 2008, the Army Corps
modified a contract with the Norfolk Dredging Company to encompass emergency dredging
between cuts 10 and 43 of the St. Johns River. Def.’s Mot., Ex. 8 (Contract No. W912EP-07-C-
0015, Amendment No. P00004 (signed Mar. 1 and 5, 2008)), ECF No. 6-6. The dredging in cuts
40 and 41 occurred that same month from March 15 to 19, 2008, Def.’s Mot., Ex. 9 (Contractors
Quality Control Report (QCR), Daily Log of Construction, Contract No. W912EP-07-C-0015,
Report Nos. 226-30 (Mar. 15-19, 2008)), ECF No. 6-6, with additional dredging in cut 41 in May
2010 as well, Def.’s Mot., Ex. 12 (Contractors Quality Control Report (QCR), Daily Log of
Construction, Contract No. W912EP-07-C-0016, Report Nos. 90-91 (May 13-14, 2010)), ECF
No. 6-7.




                                                3
                                  B. Prior Procedural History

        In March 2008, the Pellegrinis notified the Jacksonville Port Authority of damage to their
dock and boats, alleging that such damage was caused by the Army Corps’ dredging. Def.’s
Mot., Ex. 16 (E-mail correspondence between the Pellegrinis and Jacksonville Port Authority
officials (Mar. 28, 2008)) at 003001-2, ECF No. 6-8. In 2010, the Pellegrinis and Ms. Ebel also
filed administrative claims with the Army Corps in which they asserted that on March 8, 2008,
the dredging activities in the St. Johns River caused a collapse of “the banks of the river and the
underlying sand” supporting their property, resulting in damage to their docks and vessels.
Def.’s Mot., Ex. 17 (Standard Form 95, submitted by Donald and Brenda Pellegrini (Jan. 12,
2010)), ECF No. 6-9; Def.’s Mot., Ex. 18 (Standard Form 95, submitted by Anne Ebel (Mar. 1,
2010)), ECF No. 6-9.3 The Army Corps denied both claims after determining that the dredging
had not caused the damage to plaintiffs’ property. Def.’s Mot., Ex. 19 (Letter from Gregory S.
Mathers, United States Army, Tort Claims Division to Anne Ebel (May 27, 2010)), ECF No. 6-9;
Def.’s Mot., Ex. 20 ((Letter from Gregory S. Mathers, United States Army, Tort Claims Division
to Donald and Brenda Pellegrini (June 2, 2010)), ECF No. 6-9.

       Plaintiffs subsequently filed suit in this court on April 11, 2011, alleging that the Army
Corps’ dredging activity resulted in a taking of their property without just compensation in
contravention of the Fifth Amendment. See Pellegrini v. United States, 103 Fed. Cl. 47, 48-49
(2012). The Pellegrinis’ and Ms. Ebel’s claims were dismissed without prejudice pursuant to 28
U.S.C. § 1500, however, because they had previously filed a negligence claim against the
government in the United States District Court for the Middle District of Florida that remained
pending when they brought suit in this court. Pellegrini, 103 Fed. Cl. at 49, 53.4 The court
found that plaintiffs’ claim in district court, which addressed the same dredging activity, was
based upon the same operative facts as plaintiffs’ takings claim. Id.




       3
        The Pellegrinis purchased their property in 1999, Def.’s Mot., Ex. 13 (Warranty Deed
(signed Dec. 11, 1998)), ECF No. 6-7, and obtained authorization from the Army Corps and
Florida Department of Environmental Protection that same year to build their single family dock,
Def.’s Mot., Ex. 15 (Army Corps Approval (June 15, 1999), Florida Department of
Environmental Protection Approval (May 5, 1999)) at 001001, 001044-49, ECF No. 6-7.

        Ms. Ebel has owned her property since 2005, Def.’s Mot., Ex. 14 (Quit-Claim Deed
(signed Nov. 1, 2005)), ECF No. 6-7, but neither party has submitted documentation to indicate
that Ms. Ebel was authorized to build her dock at the time of the 2008 dredging, see Def.’s Mot.
at 9 n.5. Ms. Ebel did, however, apply for a permit to build a new dock in 2010. Def.’s Mot.,
Ex. 5 (Permit Application of Ms. Ebel submitted to Atlantic Permits Section & Jacksonville
Regulatory Office (June 28, 2010)) at 002004-10, ECF No. 6-5.
       4
        On October 12, 2011, approximately three months before a judge of this court issued a
decision applying Section 1500, the district court had dismissed plaintiffs’ claims without
prejudice. Order, Ebel v. United States, No. 3:10-CV-635-RBD-JRK (M.D. Fla. Oct. 12, 2011).
                                                4
                                          C. Present Suit

        Plaintiffs filed a second suit in this court on March 5, 2014, again raising a takings claim
under the Fifth Amendment as a result of the Army Corps’ dredging of the St. Johns River. See
generally Compl. Plaintiffs allege that the dredging occurred “in Cuts 40 [to] 41, in the vicinity
of buoy 34, immediately adjacent to the[ir] property.” Compl. ¶ 5. According to plaintiffs, the
Army Corp’s dredging “cause[d] a loss of lateral and subjacent support for the banks of the [St.
Johns] River, and further caused [the] collapse of the [p]laintiff[s’] seawall, and adjacent
structures including docks and boathouses.” Compl. ¶ 5. As a result, plaintiffs allege “that their
lands have collapsed into the St. Johns River and that such lands have . . . been converted from
privately-owned uplands lying outside [the government’s] navigational servitude into public
lands lying particularly or completely below mean high water.” Compl. ¶ 6. Additionally,
plaintiffs allege that the Army Corps’ actions violated the Due Process Clause of the Fifth
Amendment. Compl. at 3.

        The government responded with a motion to dismiss plaintiffs’ complaint in part for
failure to state a claim upon which relief can be granted, or, in the alternative, for summary
judgment, and for a more definite statement. Def.’s Mot. The motion was fully briefed,
including supplemental briefing regarding the high-water mark, and hearings were held on
December 3, 2014 and June 30, 2015 before Judge Wolski. After the case was reassigned on
March 30, 2017, ECF No. 33, an additional hearing was held before this court on April 19, 2017.

                                         JURISDICTION

        Plaintiffs have the burden of establishing jurisdiction. See Reynolds v. Army & Air Force
Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). Pursuant to the Tucker Act, the court has
jurisdiction “to render judgment upon any claim against the United States founded either upon
the Constitution, or any Act of Congress or any regulation of an executive department, or upon
any express or implied contract with the United States, or for liquidated or unliquidated damages
in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act waives sovereign
immunity and thus allows plaintiffs to sue the United States for money damages, United States v.
Mitchell, 463 U.S. 206, 212 (1983), but it does not provide plaintiffs with any substantive rights,
United States v. Testan, 424 U.S. 392, 398 (1976). Rather, plaintiffs “must identify a separate
source of substantive law that creates the right to money damages.” Fisher v. United States, 402
F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part) (citing Mitchell, 463 U.S. at 216;
Testan, 424 U.S. at 398).

        Here, the court has jurisdiction over plaintiffs’ takings claim. See, e.g., Preseault v.
Interstate Commerce Comm’n, 494 U.S. 1, 12 (1990); Jan’s Helicopter Serv., Inc. v. Federal
Aviation Admin., 525 F.3d 1299, 1309 (Fed. Cir. 2008) (“It is undisputed that the Takings Clause
of the Fifth Amendment is a money-mandating source for purposes of Tucker Act jurisdiction.”)
(citation omitted); Moden v. United States, 404 F.3d 1335, 1341 (Fed. Cir. 2005) (noting that a
takings claim need only be non-frivolous for this court to find jurisdiction under the Tucker Act).
Nonetheless, the court’s jurisdiction does not encompass plaintiffs’ due process claim. See
LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (explaining that the Due Process



                                                 5
Clause of the Fifth Amendment does not provide this court with jurisdiction because it is not
money-mandating) (citing Carruth v. United States, 627 F.2d 1068, 1081 (Ct. Cl. 1980)).

                                 STANDARDS FOR DECISION

         Under Rule 12(b)(6) of the Rules of the Court of Federal Claims (“RCFC”), the court
must examine whether the complaint “contain[s] sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To avoid dismissal, the facts
alleged “must be enough to raise a right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).” Kam-Almaz v. United
States, 682 F.3d 1364, 1367-68 (Fed. Cir. 2012) (quoting Twombly, 550 U.S. at 555). The court
must accept all factual allegations in the complaint as true and draw “all reasonable inferences in
favor of the non-movant,” Sommers Oil Co. v. United States, 241 F.3d 1375, 1378 (Fed. Cir.
2001) (citations omitted), but the court need not accept legal conclusions, Rack Room Shoes v.
United States, 718 F.3d 1370, 1376 (Fed. Cir. 2013) (citing Iqbal, 556 U.S. at 678).

        Under RCFC 56(a), a grant of summary judgment is proper when the pleadings,
affidavits, and evidentiary materials of the case demonstrate that “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). A genuine dispute exists when the issue “may
reasonably be resolved in favor of either party,” id. at 250, and a fact is considered material when
it “might affect the outcome of the suit under the governing law,” id. at 248. The moving party
has the burden of establishing that no genuine issue of material fact exists. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The court therefore draws all factual inferences “in the
light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369
U.S. 654, 655 (1962)). Summary judgment will be appropriate if “the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party.” Id. at 587.

                                            ANALYSIS

                            A. The Government’s Navigational Servitude

        The Takings Clause of the Fifth Amendment provides that “private property [shall not]
be taken for public use, without just compensation.” U.S. Const. amend. V. Only persons with a
“legally protected property right” at the time of the taking will be entitled to compensation. See
Northwest La. Fish & Game Pres. Comm’n v. United States, 574 F.3d 1386, 1390 (Fed. Cir.
2009) (citing United States v. Willow River Power Co., 324 U.S. 499, 503 (1945)). Additionally,
the government’s actions must have been a “direct and proximate cause” of the harm to
plaintiffs’ property. Loesch v. United States, 645 F.2d 905, 913 (Ct. Cl. 1981) (citations
omitted).

        In the context of a waterway, navigable waters are “considered ‘public property’ and
since the early days of the nation have been under the exclusive control of the federal
government under the Commerce Clause.” Owen v. United States, 851 F.2d 1404, 1408 (Fed.

                                                  6
Cir. 1988) (en banc) (citing Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 724-25 (1866);
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)). The government’s power to regulate
commerce includes the authority to regulate the nation’s navigable waters, which “confers upon
the United States a ‘dominant servitude.’” United States v. Rands, 389 U.S. 121, 122-23 (1967)
(citing Federal Power Comm’n v. Niagara Mohawk Power Corp., 347 U.S. 239, 249 (1954)).
“An interest that ‘arises from access to, and use of, navigable waters’ falls within the
[g]overnment’s dominant servitude, and any private interest is subservient to that servitude.”
Northwest La. Fish & Game Pres. Comm’n, 574 F.3d at 1390 (quoting Rands, 389 U.S. at 124-
25). This navigational servitude includes the authority to deepen waters over submerged lands,
through processes such as dredging, for purposes of improving navigability. Lewis Blue Point
Oyster Cultivation Co. v. Briggs, 229 U.S. 82, 88 (1913). The government’s exercise of power
within the navigational servitude is not a taking because it “is not an invasion of any private
property right in such lands for which the United States must make compensation.” United
States v. Chicago, Milwaukee, St. Paul & Pac. R.R., 312 U.S. 592, 596-97 (1941); see also
Owen, 851 F.2d at 1408.

        Nonetheless, the navigational servitude does not create “a blanket exception to the
Takings Clause whenever Congress exercises its Commerce Clause authority to promote
navigation.” Kaiser Aetna v. United States, 444 U.S. 164, 172 (1979). The servitude is limited
by its scope, which includes the navigable waterway itself and “the lands beneath and within [the
waterway’s] high-water mark.” Owen, 851 F.2d at 1410 (quoting United States v. Virginia Elec.
& Power Co., 365 U.S. 624, 628 (1961)); see also Chicago, Milwaukee, St. Paul & Pac. R.R.,
312 U.S. at 596-97 (“The dominant power of the federal [g]overnment, as has been repeatedly
held, extends to the entire bed of a stream, which includes the lands below [the] ordinary high
water mark.”).5 The mean high-water mark is measured by “the average height of all the high
waters” in the pertinent waterway over an 18.6 year period. Borax Consol., 296 U.S. at 26-27;
see also Def.’s Suppl. Br. at 4-5 (explaining that the average water heights are obtained through
a network of measurement stations, titled the National Water Level Observation Network).
Affected properties located within the bed of the waterway below that mark do not present
cognizable takings claims, Owen, 851 F.2d at 1409 (citing cases), whereas affected properties
above or beyond the high-water mark, described as fast lands, can be compensable, see Kaiser
Aetna, 444 U.S. at 177-78 (citing cases); Willow River Power, 324 U.S. at 509.




       5
         As the government notes, courts have often referred to the “ordinary high-water mark”
and “mean high-water mark” without distinguishing between the two terms. Compare Northwest
La. Fish & Game Pres. Comm’n, 574 F.3d at 1392 (referring to “ordinary”), with Applegate v.
United States, 35 Fed. Cl. 406, 412 (1996) (referring to “mean”). Because the relevant portion of
the St. Johns River is tidal, see Feasibility Report at 14, the mean high-water mark is appropriate
here, see Borax Consol. v. City of Los Angeles, 296 U.S. 10, 26-27 (1935) (applying the mean
high-water mark for tidal waters); Leslie Salt Co. v. Froehlke, 578 F.2d 742, 745-49 (9th Cir.
1978); Def.’s Suppl. Br. at 1-4, ECF No. 23.

                                                7
                                    B. Plaintiffs’ Takings Claim

        The government asserts that plaintiffs do not present a viable takings claim to the extent
that such claim relates to submerged lands in the St. Johns River,6 a navigable waterway that is
subject to the navigational servitude. Def.’s Mot. at 12-19.7 In support, the government argues
that the scope of the servitude, as defined by the mean high-water mark, should be determined in
2008 and 2010, the dates of the dredging that allegedly caused the damage to plaintiffs’
properties. Def.’s Reply in Support of Mot. to Dismiss, in Part, or, in the Alternative, for
Summary Judgment, and for a More Definite Statement (“Def.’s Reply”) at 9-10, ECF No. 15.
Plaintiffs respond that the scope of the servitude is defined by the mean high-water mark in
1845, the time Florida became a state, and that the mark does not change over time. Pls.’ Suppl.
Br. at 3-7, ECF No. 30. Plaintiffs contend that under their interpretation of the mean high-water
mark, all of the properties at issue fall outside of the navigational servitude. See Pls.’ Opp’n at
2-3.

       The court need not now resolve the disputed time period for measuring the mean high-
water mark because that boundary remains undefined with respect to plaintiffs’ property,
regardless of which measure applies, and thus a factual issue is presented that is not
appropriately resolved at this stage of the proceedings.8 Determining whether a taking has

       6
         The government is not seeking dismissal or summary judgment, however, of plaintiffs’
takings claim for fast lands located above or beyond the mean high-water mark. See Def.’s Mot.
at 12 n.6; Hr’g Tr. 16:20-23 (Apr. 19, 2017).
       7
         Plaintiffs rely on Kaiser Aetna, 444 U.S. 164, to contend that the pertinent segment of
the St. Johns River is not navigable because, according to plaintiffs, only part of the river was
navigable in its natural state, but not the portion of the river adjacent to plaintiffs’ property. See
Pls.’ Resp. to Def.’s Mot. to Dismiss in Part, or, in the Alternative, for Summary Judgment, and
for More Definite Statement (“Pls.’ Opp’n”) at 2-3, 8-9, ECF No. 11; see also Kaiser Aetna, 444
U.S. at 178-79 (examining whether the relevant waterway was navigable in its natural state).
Taken most broadly, however, plaintiffs’ argument is misplaced because the navigational
servitude extends from one side of a navigable waterway to the other, and is thus “not limited to
the thread of the stream where vessels pass.” Allen Gun Club v. United States, 180 Ct. Cl. 423,
429 (1967) (citation omitted); see also Mildenberger v. United States, 91 Fed. Cl. 217, 249
(2010) (noting that the servitude is “not limited to those portions of a river or stream that are
actually navigable in fact”) (citing Allen Gun Club, 180 Ct. Cl. at 429), aff’d in part, 643 F.3d
938 (Fed. Cir. 2011).
       8
         Relevant precedents regarding the navigational servitude do not address the precise time
in which the mean high-water mark is measured under the circumstances pertinent here. See,
e.g., Rands, 389 U.S. at 123 (explaining only that the high-water mark defines the scope of the
navigational servitude); Borax Consol., 296 U.S. at 26-27 (stating that the high-water mark is
averaged over approximately 19 years, but not specifying when that time period begins in the
context of multiple dredging projects); Northwest La. Fish & Game Pres. Comm’n, 574 F.3d at
1390 (stating only that the high-water mark includes “the entire . . . stream”) (quoting Chicago,
Milwaukee, St. Paul & Pac. R.R., 312 U.S. at 596-97); see also Kaiser Aetna, 444 U.S. at 178-79
(examining whether the relevant waterway was navigable in its natural state for the purpose of
                                                  8
occurred, specifically in the context of the government’s navigational servitude, is “often decided
on the basis of narrow, factual distinctions,” and therefore is “rarely proper for resolution on the
pleadings.” Owen, 851 F.2d at 1416 (citing Kaiser Aetna, 444 U.S. at 175; Loesch, 645 F.2d at
913). Tellingly, although the government notes that the high-water mark is measured “at the
time of the construction,” id. at 1412, a significant number of construction projects have been
undertaken in the relevant portion of the St. Johns River since 1869, with many of those projects
encompassing substantial dredging of the river bed, see, e.g., Feasibility Report at 4-6. This
dredging has not only deepened the river for purposes of navigability, but it has also affected the
banks of the river and the boundary of the mean high-water mark. As the river changes in
response to that dredging, the scope of the mean high-water mark shifts as well. See Owen, 851
F.2d at 1410 (“There must also be horizontal limits to the ‘bed’ of a river; otherwise, the
navigational servitude would extend infinitely in all directions and swallow up any claim for
‘just compensation’ under the Fifth Amendment for damages occurring anywhere below the
elevation of the high-water mark.”) (citing Kaiser Aetna, 444 U.S. at 177).

        Here, plaintiffs claim that the dredging of the St. Johns River resulted in a loss of support
along the banks of the river, allegedly causing their seawall, docks, boathouses, and adjacent
structures to collapse. Compl. ¶¶ 5-6. Although submerged lands within the mean high-water
mark are subject to the navigational servitude, the appropriate boundaries are undefined with
respect to the improvements on plaintiffs’ property that were destroyed, such as the seawall,
bulkheads, and adjacent structures. “[I]t is not the location of the cause of the damage that is
relevant, but the location and permanence of the effect of the government action causing the
damage that is the proper focus of the taking analysis.” Owens, 851 F.2d at 1412 (emphasis in
original) (citing United States v. Cress, 243 U.S. 316 (1917); Tri-State Materials Corp. v. United
States, 550 F.2d 1, 4 (Ct. Cl. 1977); Goose Creek Hunting Club, Inc. v. United States, 518 F.2d
579, 583 (Ct. Cl. 1975)). The effect of the Army Corps’ dredging on plaintiffs’ property, and the
extent to which their properties fall within the mean high-water mark, are issues that cannot be
addressed without further factual development. Plaintiffs have therefore presented a plausible
takings claim upon which relief could be granted, and the claim turns on disputed issues of
material fact. Accordingly, dismissal of plaintiffs’ complaint or a grant of summary judgment is
not appropriate.

                  C. The Government’s Request for a More Definite Statement

        The government also requests a more definite statement from plaintiffs, asserting that the
complaint fails to sufficiently provide the dates of the underlying events and the details of
plaintiffs’ property interests. See Def.’s Mot. at 19-21. Despite these assertions, the
government’s filings and extensive documentation accompanying its motion demonstrate that it
sufficiently understands plaintiffs’ takings claim. The documents provided by the government,
many of which were cited supra, delineate the changes to the navigable channel and dredging
activity within the St. Johns River. Further, the documents indicate the time of the collapse of
support and the property interests underlying plaintiffs’ claim. Thus, the government’s motion
for a more definite statement is denied.


determining navigability, but not addressing the scope of the high-water mark or when that mark
is measured).
                                                 9
                                         CONCLUSION

       For the reasons stated, the government’s motion to dismiss plaintiffs’ complaint is
GRANTED insofar as plaintiffs’ due process claim is concerned, but is otherwise DENIED. The
government’s alternative motion for summary judgment is DENIED, as is the government’s
motion for a more definite statement.

        The government shall file its answer to plaintiffs’ complaint on or before the time
specified in RCFC 12(a)(4).

       It is so ORDERED.



                                             s/ Charles F. Lettow
                                             Charles F. Lettow
                                             Judge




                                                10
