DEBRA HAIGHT
BCR Correspondent
SHOREHAM – A decades-long dispute between the U.S. Army Corps of Engineers and a group of Lake Michigan property owners could finally be coming to a close.
A group of 40 Shoreham property owners led by John and Mary Banks first sued the U.S. Army Corps of Engineers in 1999 and has seen the case wind its way through the U.S. Federal Court of Claims to the U.S. Court of Appeals for the Federal Circuit and back again a number of times.
The most recent action by the U.S. Court of Appeals came last December when property owners’ right to damages for the irreversible damage suffered for the loss of their shoreline was upheld. The court also rejected three government petitions for more hearings since then.
“It cannot be the case that acres of property are lost to
erosion and the value of that total property is not affected,” the Court of Appeals ruled. “The purpose of awarding damages in takings cases is to
restore the owner of private property to “as good a position pecuniarily as if his property had not been taken … Property lost due to Government-caused erosion manifestly has some monetary value.”
Mark Christensen, a Chicago-based attorney for the property owners, said last week that the next step will be for the Federal Court of Claims to determine the amount of damages the government owes property owners.
When asked about the chances for settlement, he noted that the government hasn’t been willing to sit down “for 20 years.” “To settle, you need two sides willing to sit down,” he said. “If we don’t settle, there will be a hearing or other evidence about current and future conditions and then a judgment entered.”
Either way, Christensen said he expects the lawsuit to be wrapped up within a year. He wouldn’t speculate on how much the damages could be. “It could be a lot of money, I won’t say how much,” he said.
The Shoreham property owners originally sued the U.S. Army Corps of Engineers because they said the installation of steel jetties on the piers in St. Joseph in 1950 and later had disrupted Lake Michigan’s natural sand flow and ended up accelerating the erosion at their beachfront homes.
The original trial in 2007 as well as a subsequent 2011 hearing in the case were held at the south county building in Niles. The 2007 trial ended with a federal judge ruling that the federal government was 30 percent liable for the damages the plaintiffs suffered.
Federal Court of Claims Judge Emily Hewitt oversaw the trial and later hearing held at the Niles courthouse. She initially dismissed the case, but revisited it again in 2007 after the U.S. Court of Appeals in Washington, D.C. reversed her initial dismissal.
The 2007 trial held in Niles ended with her ruling that the federal government was 30 percent liable for the damages the plaintiffs suffered. A 2011 hearing was also held in Niles with the goal of determining damages due the property owners. Judge Hewitt ended up dismissing the case again after the 2011 hearing.
A 2014 U.S. Court of Appeals decision reversed her 2011 dismissal and remanded it back to the Federal Court of Claims for more proceedings.
A central issue throughout the trial and all the hearings has been whether the shoreline of the property owners’ land is more indicative of a sandy rather than cohesive shoreline.
A government expert claimed that the shoreline is sandy which means that beach nourishment programs could work. Property owners disagreed, saying that the materials are cohesive, meaning they are bound together and not as mobile, and the damage is irreversible.
The Court of Appeals agreed, saying there is “persuasive evidence that the shoreline south of the jetties, where Banks’s properties are located, exhibits cohesive properties such that certain erosion to the property is irreversible and may not be mitigated.”
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