Whether a plaintiff claiming damage to a structure placed on navigable waters must show that its structure was permitted in order to maintain a compensable property interest in a maritime tort action

QUESTIONS PRESENTED This Court has unequivocally declared through takings decisions that a private property owner must have a compensable interest to recover damages. Since the earliest decisions, including United States v. ChandlerDunbar Water Power Company, 229 U.S. 53 (1918), this Court has also acknowledged that the right to the use of the navigable waters is a qualified one and subordinate to the public right of use and absolute power of Congress to regulate them. When these principles are at issue in cases before the Court of Claims, the property owner must also prove a compensable claim and to do so must establish a valid permit issued by the Army Corps of Engineers. On the admiralty side of law, however, the absolute requirement for a permit has been lost in the analysis of longstanding presumptions, including the Oregon and Pennsylvania Rules. A writ is necessary to resolve this conflict and reconcile admiralty law with these land-based decisions and resolve two questions: 1. Land-based decisions in the takings context mandate permit compliance as a threshold for a plaintiff to have a compensable property interest.’ For the exact same issue under the general maritime law, should the plaintiff claiming damage to a structure placed on navigable waters and which is subject to permit compliance under the Rivers and Harbors Act also have to show that its structure was permitted in order to maintain a compensable property interest in a maritime tort action? 1. Yaist v. United States, 17 Cl. Ct. 246 (1987). 2. United States v. Chandler-Dunbar Water Power Company, 229 U.S. 58 (1913); Yaist v. United States, 17 Cl. Ct. 246 (1987). u 2. Since Entergy maintained an unpermitted structure in navigable waters, should it have been subjected to a different comparative fault analysis than what was used by the lower courts, and should the standard have required this plaintiff to show that its structure could not have been the cause of the incident? This case also presents the unique opportunity for this Court to clarify and modify existing exceptions to the “nigh automatic” award of prejudgment interest in admiralty. Under the “peculiar circumstances” of this case, the lessee was awarded prejudgment interest without a valid permit, and after the damage award was determined under state common law. Damages were rewarded after the repair contract was determined to be non-maritime after a lengthy trial in state court because the lessee failed to mitigate its damages. The lessee also waited almost three years from the date of the incident before bringing a tort claim in admiralty, and almost four years to commence a single repair. Under Supreme Court precedent, including City of Milwaukee,* the peculiar procedural background and evidence of undue delay require review and answer to the following question: 3. Does the discretionary right to award prejudgment interest in an admiralty proceeding extend so far as to allow the award of interest over the significant period of time when the money was not spent and during which time the plaintiff did not demonstrate any need to use the damaged property, and require the district court to evaluate “peculiar circumstances” and “undue delay?” 3. City of Milwaukee v. National Gypsum Co., 515 U.S. 189 (1995).