Board of Supervisors of Issaquena County, Mississippi v. United States

In the United States Court of Federal Claims

No. 21-1415

Filed: December 3, 2024

)

BOARD OF SUPERVISORS OF )

ISSAQUENA COUNTY, )

MISSISSIPPI, )

)

Plaintiff, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

)

Ronald Johnson, IV, Deakle-Johnson Law Firm, Hattiesburg, MS, for plaintiff.

Brian R. Herman, United States Department of Justice, Environment and Natural

Resources Division, Washington, D.C., for defendant.

OPINION AND ORDER

SMITH, Senior Judge

Issaquena County, Mississippi’s federally intensified floods allegedly

commenced in 1979. Waters rose again in 1983, then again in 1984, and once more in

1993. Seemingly lingering longer than each one prior, the almost yearly deluges

returned in 1997, in 1998, in 2002, in 2003, and in 2005. So frequently did the

Mississippi Delta’s waters rise that news of their return were paradoxically both

commonplace and newsworthy in 2008. Yet, the Delta’s ebb and flow did not relent,

when in 2009, in 2011, and in 2013, the floodwaters overtook the County anew.

Finally, the Mississippi Delta overflowed between 2018 and 2019, prompting the Board

of Supervisors of Issaquena County, Mississippi (the “Board”) to bring this lawsuit.

The Board claims the unrelenting floods—of which the 2018/2019 inundation is

the most recent episode—are exacerbated by Army Corps of Engineers’ 1978 levee

system, the Yazoo Backwater Project, because it inhibits the Mississippi Delta’s natural

topographic drainage system. See generally Second Amended Complaint, ECF No. 27

[hereinafter Second Am. Compl.]. In turn, the Yazoo Backwater Project has produced,

since the 1979 flood, larger and more prolonged flooding that has harmed or destroyed

the Board’s property within the County, thereby triggering a taking under the Fifth

Amendment to the United States Constitution. Id. at 10–13.

Even if the Board’s Fifth Amendment claim is meritorious, a doubtful outcome,

the Board is nonetheless tardy in asserting it. The Tucker Act’s statute of limitations,

providing only six years to a plaintiff to assert its cause of action, prevents review of

the Board’s forty-five-year-old claim arising from the Yazoo Backwater Project’s

construction and operation. 28 U.S.C. § 2501; see John R. Sand & Gravel Co. v. United

States, 552 U.S. 130, 135 (2008) (“Over the years, the Court has reiterated . . . the more

absolute nature of the court of claims limitations statute.”); Defendant’s Motion to

Dismiss at 13–18, ECF No. 30 [hereinafter Def.’s Mot.]. The Court’s subject-matter

jurisdiction bar is thus in effect, and the Board’s claim must be dismissed for that

reason. See R. Ct. Fed. Cl. 12(h)(3). The United States of America’s Motion to

Dismiss for Lack of Subject-Matter Jurisdiction, ECF No. 30, is consequently granted.

I. Background

A. Factual History 1

The Mississippi Delta’s mighty reach spans approximately the entire State of

Mississippi. See Bd. of Supervisors of Issaquena Cnty., Mississippi v. United States, 84

F.4th 1359, 1362 (Fed. Cir. 2023). Northwards, the alluvial valley almost reaches the

State of Tennessee. Id. Southwards, it hits Vicksburg, Mississippi, and creates the

South Delta. Id. In the South Delta, the Mississippi River slams into the Yazoo River,

forming an unmissable Y-convergence, known as the Yazoo Backwater Area. Id.; see

also Second Am. Compl. at 1. Smack-dab between this Y-convergence is Issaquena

County—which the Board governs. See Second Am. Compl. at 1.

Issaquena County “is one of the poorest counties, in one of the poorest states in

the United States of America.” Id. Sparsely populated, its land is tilled for

“agricultural uses, including large swaths of farm and timber land.” Id. But the County

has a consistent problem: the South Delta itself. Id. at 4–9; see also Bd. of Supervisors

of Issaquena Cnty., Mississippi, 84 F.4th at 1362. “The Delta has often been flooded by

its surrounding rivers, at times compounded by storms resulting from its proximity to

the Gulf of Mexico,” and at issue here, the Y-convergence’s recurrent backwater

flooding. Bd. of Supervisors of Issaquena Cnty., Mississippi, 84 F.4th at 1362 (citing

United States v. Sponenbarger, 308 U.S. 256, 260 (1939)). Backwater flooding occurs

when the dominant river in a Y-convergence, here, the Mississippi, rises faster than its

tributary river, here, the Yazoo, making the tributary river surge to match the dominant

river’s water level. Id.; see Second Am. Compl. at 5. According to the Board, this

1

“The facts in this section derive from the [Second Amended C]omplaint, the parties'

submissions (including attached exhibits), and matters of which the [C]ourt may take judicial notice

pursuant to Rule 201 of the Federal Rules of Evidence.” Whiteland Holdings, L.P. v. United States, 141

Fed. Cl. 702, 705 n.1 (2019), aff ’d sub nom. Frazer/Exton Dev., L.P. v. United States, 809 F. App'x 866

(Fed. Cir. 2020). “A court may take judicial notice of a fact only when it is either ‘generally known’ or

‘accurately and readily [discernible] from sources whose accuracy cannot reasonably be questioned.’”

Amgen Inc. v. Sanofi, 872 F.3d 1367, 1378 (Fed. Cir. 2017) (quoting Fed. R. Evid. 201(b)). “Judicial

notice of public records is appropriate when considering a motion to dismiss.” Diversified Grp., Inc. v.

United States, 123 Fed. Cl. 442, 453 n.7 (2015) (collecting sources), aff ’d, 841 F.3d 975 (Fed. Cir.

2016).

-2-

process has been exacerbated by the construction and operation of the Yazoo Backwater

Project. See Second Am. Compl. at 2–3.

The Yazoo Backwater Project is a product of tragedy. In 1927, the colloquially-

named ‘Great Flood’ struck communities on the Mississippi, including Issaquena

County. Id. at 4–5. As the Great Flood progressed, the Mississippi swelled, water

crested the tops of levees from New Orleans to Missouri, and then after months of rain,

several levees burst. See Sponenbarger, 308 U.S. at 260–61; Susan Scott Parrish, The

Great Mississippi Flood of 1927 Laid Bare the Divide Between the North and the South,

S MITHSONIAN M AGAZINE , https://www.smithsonianmag.com/history/devastating-

mississippi-river-flood-uprooted-americas-faith-progress-180962856/ (last accessed on

Dec. 3, 2024). Across ten states, “every house, every barn, every outbuilding of every

nature, even the fences were swept away” by the Great Flood. Sponenbarger, 308 U.S.

at 261 (internal quotation marks omitted). In total, the Great Flood submerged sixteen

million acres of land and displaced 600,000 people. See Parrish, supra at 3.

Confronted with “the most destructive river flood in U[nited] S[tates] history,” id.,

Congress responded by passing the Flood Control Act of 1928, which authorized the

Army Corps of Engineers to design a predecessor of the Yazoo Backwater Project: A

“‘comprehensive ten-year program for the entire [Mississippi] valley, embodying a

general bank protection scheme, channel stabilization and river regulation, all involving

vast expenditures of public funds.’” Bd. of Supervisors of Issaquena Cnty., Mississippi,

84 F.4th at 1362 (quoting Sponenbarger, 308 U.S. at 262). The Army Corps of

Engineers decided to install additional Mississippi River levees. Id.; see also Second

Am. Compl. at 4–5.

Adding levees was not a miracle cure, however, for those in the Mississippi

Delta. Sponenbarger, 308 U.S. 256, 261 (“Recurrent floods, even after the eventual

completion of this tremendous undertaking, led to the conclusion that levees alone,

though continuous, would not protect the valley from floods.”). “The government

recognized that the improved Mississippi levees, by retaining more water in the river,

led to more flood risk in the area between the” Yazoo Backwater Area, including

Issaquena County. Bd. of Supervisors of Issaquena Cnty., Mississippi, 84 F.4th at 1362.

So, in 1936, Congress approved the Eudora Floodway to direct the Mississippi’s

overflow waters to the Gulf of Mexico. Id. (citing 33 U.S.C. § 702a-2). But the Eudora

Floodway was never built. Id. (congressionally “abandoned” by statute). In its place,

the Congress funded the Yazoo Backwater Project, “a new levee system,” for the South

Delta. Id. at 1362–63; see Second Am. Compl. at 4–5.

Running up thirty miles northeast from the Y-convergence and enclosing the

Yazoo River Area’s total 4,093 square mile drainage basin, the Yazoo Backwater Project

is a massive series of floodgates intersecting miles of concrete walls. See Second Am.

Compl. at 5–6; Bd. of Supervisors of Issaquena Cnty., Mississippi, 84 F.4th at 1363.

But, according to the Board, the levee system’s colossal scope obscures a devastating

feature: Once the floodgates are closed, to prevent backwater flooding during rainy

periods, “any additional precipitation that falls within the 4,093 square mile drainage

area becomes trapped behind the floodgates . . . and is unable to drain,” thereby

-3-

“causing potential several and prolonged flooding of” Issaquena County. Second Am.

Compl. at 6. From this structural and operational choice, the Board maintains, the

Yazoo Backwater Project has led to “greater” flooding and damage to the Board’s land

and infrastructure—“roads, bridges, culverts, drainage systems . . . levees,” and the

like—because the Army Corps of Engineers “intentionally cut-off the natural drainage,”

via “creeks, streams, and other tributaries” within the South Delta. Id. at 6–7. In short,

according to the Board, by both blocking and irreparably altering these tributaries, the

Yazoo Backwater Project causes—once the floodgates are closed—“floodwaters [to]

remain on the Board’s property for a longer period of time and to a greater depth than ..

. would have [occurred had] the” levee system never been built. Id. To the Board, this

flow of events produced a taking under the Fifth Amendment when Issaquena County

flooded between 2018 and 2019. Id. 10–13.

Or really, under the Board’s cause-of-action theory, the Yazoo Backwater

Project’s operation has caused takings over decades—given that, since the levee

system’s completion, Issaquena County has flooded at least fourteen times. See Def.’s

Mot. at, 7–9, 15–18 (relying on data from U.S. A RMY C ORPS OF E NG ’ RS , F INAL S UPPL .

N O . 2 TO THE 1982 Y AZOO A REA P UMP P ROJECT F INAL E NVIRONMENTAL I MPACT

S TATEMENT App. G (2020) (“2020 Report”)). While the Board only focuses on the

flooding’s most recent iteration that occurred during 2018 and 2019, see Second. Am.

Compl. at 8, public records demonstrate, as illustrated by the chart below, that

Issaquena County has been repeatedly flooded with consistent severity for almost fifty

years since the completion of the Yazoo Backwater Project:

-4-

See Def.’s Mot. at 7–9, 15–18 (citing the 2020 Report); see also Oral Argument

Transcript 6:14–8:10 [hereinafter Oral Arg.]. In fact, in 2008, when floodwaters were

nearing ninety feet, The New York Times reported from Steele Bayou, Mississippi,

located in Issaquena County, that during torrential rainfall:

The area of the lower [Mississippi] Delta is like the end of a bathtub near

the drain. When the waters of the Mississippi River reach flood stage, where

they are now, they back up into the Yazoo River. As the Yazoo reverses its

flow, the gates in the large drainage structure [of the Yazoo Backwater

Project] close, plugging the bathtub and keeping out the Yazoo backwater.

But when the gates are closed, runoff from the upper [Mississippi] Delta

does not drain into the Mississippi.

Felicity Barringer, Death Looms for a Flood-Control Project, N.Y. T IMES (Apr. 9,

2008), https://www.nytimes.com/2008/04/09/us/09yazoo.html (last accessed on Dec. 3,

2024) (paragraph break deleted). In other words—from the Army Corps of Engineers’

reports to The New York Times’ reporting—multiple public sources routinely and

prominently announced that Issaquena County, Mississippi’s recurrent flooding has

been an issue for over forty years. See id.; Def.’s Mot. at 7–9, 15–18 (citing 2020

Report); Oral Arg. 6:14–8:10.

Just the same, the Board chooses to now bring its Fifth Amendment taking claim

against defendant. See generally Second. Am. Compl.

B. Procedural History

On June 9, 2022, the Court originally dismissed the Board’s first amended

complaint’s previous two claims for failure to state a claim. See Bd. of Supervisors of

Issaquena Cnty. v. United States, 160 Fed. Cl. 300, 302, 304–07 (2022); see generally

First Amended Complaint, ECF No. 9. As to the first claim, the federal government

inaction—there, the Army Corp of Engineers’ “failure to construct backwater pumps, a

floodway for alternative drainage, or the Yazoo Backwater Project as originally

planned”—cannot serve as a basis for a Fifth Amendment Taking Clause claim and thus

was dismissed for this reason. Bd. of Supervisors of Issaquena Cnty., Mississippi, 160

Fed. Cl. at 305. And as to the second claim, the Board failed to “allege sufficient facts

to support that the government’s construction and operation of the Yazoo Backwater

Project caused more flood damage to plaintiff’s property than if the project had never

been built” and thus was dismissed for this reason. Id. at 306.

On July 14, 2022, the Board appealed this Court’s dismissal to the United States

Court of Appeals for the Federal Circuit (“Federal Circuit”). See generally Plaintiff’s

Notice of Appeal, ECF No. 17. On August 4, 2023, the Federal Circuit issued its

opinion agreeing that “the Board’s complaint failed to state a claim,” but remanding so

that the Board could allege a new theory of causation. See Bd. of Supervisors of

Issaquena Cnty., Mississippi, 84 F.4th at 1361. According to the Federal Circuit, this

Court did not err in dismissing both counts for failure to state a claim. Id. at 1367; see

-5-

also id. at 1370 (“The Claims Court did not abuse its discretion here, and not even the

Board suggests it did.”). Indeed, “as the Board effectively admits, if the [Yazoo]

Backwater Project had not been there, the [County] would almost certainly have been

struck with backwater flood[waters] . . . in 2019” because the flooding then was the

worst in almost a century. Id. Accordingly, the Federal Circuit reaffirmed its

longstanding principle that to cause a taking, the government’s actions must have “led

to worse rainwater flood than would have occurred in” the Yazoo Backwater Project’s

“absence.” Id. at 1368. The Federal Circuit also reaffirmed that government inaction

cannot create a Fifth Amendment claim. Id. at 1365. Still, the Federal Circuit

remanded to “provide the Board an opportunity to seek leave to amend one last time and

attempt to state a plausible takings theory based on government action.” Id. at 1370

(emphasis added).

After the case had been remanded, on September 29, 2023, the Board moved to

amend its complaint. See generally Plaintiff ’s Motion to Amend Complaint, ECF No.

22. On October 13, 2023, defendant opposed the amendment as futile. See generally

Defendant’s Response to Motion to Amend Complaint, ECF No. 23. The Board did not

file a reply. On April 24, 2024, the Court granted leave to amend. See generally Order

Granting Plaintiff’s Motion to Amend Complaint, ECF No. 26. On May 8, 2024, the

Board filed its second amended complaint, now asserting that the Yazoo Backwater

Project’s construction and operation resulted in exacerbated flooding and thus is a

taking under the Fifth Amendment. See generally Second Am. Compl. That complaint

is the operative pleading. See generally Reported Order denying Defendant’s Motion to

Strike Plaintiff’s Second Amended Complaint, ECF No. 44.

On June 5, 2024, defendant moved, as relevant here, to dismiss the Board’s

second amended complaint for lack of subject-matter jurisdiction and for failure to state

a claim. See generally Def.’s Mot.

On July 3, 2024, the Board filed its opposition to defendant’s motion to dismiss.

See generally Plaintiff ’s Response to the Motion the Dismiss, ECF No. 35 [hereinafter

Pl.’s Resp.]. On July 26, 2024, defendant replied in support of its motion to dismiss.

See generally Defendant’s Reply in support of Its Motion to Dismiss, ECF No. 40

[hereinafter Def.’s Reply]. On September 25, 2024, the Court held oral argument. The

Court now issues its decision on the sufficiency of the second amended complaint.

II. Legal Standard 2

Under the Tucker Act, the Court may “render judgment upon any claim against

the United States founded either upon the Constitution, or any Act of Congress or any

regulation of an expressed 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). “[I]n

order to come within the jurisdictional reach . . . [of] the Tucker Act, a plaintiff must

2

See Progressive Indus., Inc. v. United States, 888 F.3d 1248, 1253 n.4 (Fed. Cir. 2018) (holding

that “[t]he precedent interpreting the Federal Rules of Civil Procedure applies with equal force to the

comparable Rules of the Court of Federal Claims.” (internal citations omitted)).

-6-

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). Indisputably, “the

Takings Clause of the Fifth Amendment is a money-mandating source for purposes of

Tucker Act jurisdiction.” Jan's Helicopter Serv., Inc. v. F.A.A., 525 F.3d 1299, 1309

(Fed. Cir. 2008).

All Fifth Amendment taking claims evoking the Tucker Act must be “filed within

six years after such claim first accrues.” 28 U.S.C. § 2501; see Hopland Band of Pomo

Indians v. United States, 855 F.2d 1573, 1578 (Fed. Cir. 1988) (“Since the [six]–year

period is also an express condition of the government's consent to be sued, courts are

without jurisdiction to expand that period explicitly provided by Congress, at least on

the equitable grounds of waiver or estoppel.”). Once the federal government

“appropriate[s] private property for public use without just compensation” and the “the

plaintiff was or should have been aware of” the unconstitutional appropriation, Boling v.

United States, 220 F.3d 1365, 1370 (Fed. Cir. 2000), all the prerequisites have occurred

“to enable the plaintiff to bring suit, [and] entitling the claimant to demand payment

and sue here for his [or her] money,” Martinez v. United States, 333 F.3d 1295, 1303

(Fed. Cir. 2003) (en banc) (internal quotation marks omitted). Thus, accrual begins on

the date in “which the plaintiff's land has been clearly and permanently taken,” Boling,

220 F.3d at 1370, according to an “objective” reasonable person in plaintiff’s position,

see Grass Valley Terrace v. United States, 46 Fed. Cl. 629, 633 (2000), aff ’d, 7 F. App'x

928 (Fed. Cir. 2001); see also Fallini v. United States, 56 F.3d 1378, 1380 (Fed. Cir.

1995) (“The question whether the pertinent events have occurred is determined under an

objective standard; a plaintiff does not have to possess actual knowledge of all the

relevant facts in order for the cause of action to accrue.”).

But marking the “exact moment” of when the Tucker Act’s timer begins can be a

finicky evaluation. Boling, 220 F.3d at 1370. For instance, despite the Court’s

“absolute” six-year statutory bar, John R. Sand & Gravel Co., 552 U.S. at 135, “[w]hen

a taking occurs by a gradual or continuous physical process,” such as with recurrent

flooding or erosion, a Fifth Amendment claim only “accrues when the condition

‘stabilizes,’” Swartzlander v. United States, 142 Fed. Cl. 435, 443 (2019) (quoting

Mildenberger v. United States, 643 F.3d 938, 945 (Fed. Cir. 2011)), aff ’d, 811 F. App'x

616 (Fed. Cir. 2020).

“[S]tabilization occurs when it becomes clear that the gradual process set into

motion by the government has effected a permanent taking, not when the process has

ceased or when the entire extent of the damage is determined.” Boling, 220 F.3d at

1370–71. After all, “[t]he source of [the plaintiff’s] entire claim—the overflow due to

rises in the level of the river—is not a single event; it is continuous.” United States v.

Dickinson, 331 U.S. 745, 749 (1947). Therefore, stabilization only delays that statutory

bar until the flooding has “substantially and permanently invaded the private property”

to the extent that the taking’s nature is evident and is reasonably foreseeable to reoccur,

see Boling, 220 F.3d at 1371, rather than when flooding ceases or when flooding is at

its “most painful,” Delaware State Coll. v. Ricks, 449 U.S. 250, 258 (1980) (internal

quotation marks omitted); see Boling, 220 F.3d at 1371 (“The contention . . . [that] the

-7-

filing of a [Fifth Amendment Taking Clause] lawsuit can be postponed until the full

extent of the damage is known has been soundly rejected.”). That said, “the plaintiff

need not sue” if the “gradual process” has not become an evident taking, Boling, 220

F.3d at 1371, such as if “it [is] uncertain at what stage in the flooding operation that

land had become appropriated for public use,” United States v. Dow, 357 U.S. 17, 27

(1958) (noting the “expressly limited holding in [United States v.] Dickinson”

(emphasis added)).

At bottom, if a Fifth Amendment taking claim is brought after six years of

accrual, the claim must be dismissed for lack of subject-matter jurisdiction. See R. Ct.

Fed. Cl. 12(h)(3). When subject-matter jurisdiction is challenged, the plaintiff “bears

the burden of establishing the [C]ourt's jurisdiction over its claims by a preponderance

of the evidence.” Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed.

Cir. 2011). Jurisdictionally determinative evidence includes “all undisputed facts

asserted in the plaintiff’s complaint,” id., and any relevant evidence outside the

complaint, see Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir.

1988), including judicially noticeable public records, see Diversified Grp., Inc., 123

Fed. Cl. at 453 n.7 (collecting sources).

III. Discussion

The Board’s claim requires dismissal. It is incurably tardy. For almost fifty

years since the Yazoo Backwater Project’s construction and the Army Corps of

Engineers operation thereof, the Mississippi Delta has continuously flooded Issaquena

County, Mississippi. See Def.’s Mot. at 7–9, 15–18 (citing 2020 Report); Oral Arg.

6:14–8:10; Barringer, supra, at 5. No objective reasonable person—let alone a body

governing a county—would be without notice of a possible taking of the Board’s

property; or at least the Board should have been aware of a possible taking due to the

publicly noticed recurrent floods over almost a half-century since the Yazoo Backwater

Project’s construction. E.g., Barringer, supra, at 5 (describing extensive flooding in

2008 within Issaquena County, Mississippi); see Whiteland Holdings, L.P., 141 Fed. Cl.

at 712 (holding that a plaintiff “could not delay the accrual of [its] claim . . . when [it]

had access to all of the necessary facts—by virtue of those facts being in the public

record, as well as [the plaintiff’s] actual knowledge of those facts—giving rise to [its]

claim.”). For that reason, the Tucker Act’s six-year statute of limitations has run out,

see 28 U.S.C. § 2501, and dismissal is required, see R. Ct. Fed. Cl. 12(h)(3).

“Statute of limitations are vital to the welfare of society and are favored in the

law.” Wood v. Carpenter, 101 U.S. 135, 139 (1879). By forcing an allegedly harmed

party to assert his or her claim(s) before a deadline, accused parties can neither waive

away disputes without good cause nor be unshielded from boundless liability. Of

course, deadlines have tradeoffs: “Mere delay,” by even a single day past the statutory

deadline, “is itself a conclusive bar” to a harmed party’s cause-of-action, regardless of

its validity. Id. Clarity, therefore, aids, but also forces a “[s]tale conflict[]” to “rest

undisturbed” once the deadline passes. Dayco Corp. v. Goodyear Tire & Rubber Co.,

-8-

523 F.2d 389, 394 (6th Cir. 1975); see also Wood, 101 U.S. at 139 (“The bane and

antidote go together.”).

This Court’s deadline is six years. 28 U.S.C. § 2501. Failure to file an accrued

claim by this deadline “places the claim beyond the [C]ourt’s power to hear” it because,

if not timely filed, the Tucker Act’s limited jurisdictional wavier of sovereign immunity

would be violated. Gromo v. United States, No. 93-5161, 1993 WL 456408, at *1 (Fed.

Cir. 1993) (per curiam) (citing Jones v. United States, 801 F.2d 1334, 1335 (Fed. Cir.

1986), cert. denied, 481 U.S. 1013 (1987)); Martinez, 333 F.3d 1295, 1303 (en banc)

(“It is well established that statutes of limitations for causes of action against the

United States, being conditions of the waiver of sovereign immunity, are jurisdictional

in nature.”); see also John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 1354

(Fed. Cir. 2006) (collecting cases), aff ’d, 552 U.S. 130 (2008). Thus, claimants’ cases

are blocked if brought after six years of accrual. 28 U.S.C. § 2501.

More than forty years has elapsed since 1979, when the County experienced its

first flood after the construction of the Yazoo Backwater Project. See Def.’s Mot. at 7–

9, 15–18 (citing 2020 Report); Oral Arg. 6:14–8:10; see also Pl.’s Resp. at 4–5 (relying

upon the 2020 Report to argue that the statute of limitations does not apply). And these

floods were not blips; they were monthslong slogs. Oral Arg. 6:25–7:1 (“Nor was this

flooding brief. It was readily apparent.”). The 1979 flood lasted around three months.

See Def.’s Mot. at 8, 16 (citing 2020 Report). After a short reprieve, monthslong

flooding returned in 1983, in 1984, and in 1993. Id. In 1993 alone, the Yazoo

Backwater “[P]roject gates [were] closed . . . [for] more than four months.” Oral Arg.

7:1–7:3. “In 1997, [flooding] lasted [for] more than three months.” Id. at 7:3. The

same was true in 1998. See Def.’s Mot. at 8, 16 (citing 2020 Report). Surely our new

millennium brought many changes, but Issaquena County still saw monthslong flooding

in both 2002 and 2005. Id. Floods returned in 2008 and 2009 and “lasted [for] about

five months,” Oral Arg. 7:4, causing The New York Times to remark upon Issaquena

County’s continual desperate condition, see Barringer, supra, at 5. “[A]nd in 2011,

[flooding] lasted [for] more than four months.” Oral Arg. 7:4–7:5. Recurrent

monthslong flooding—an unmissable situation for a Board “responsible for the general

operation and government function of Issaquena County,” see Second. Am. Compl. at

6—once again returned in 2013, in 2015, in 2016, in 2017, and between 2018 and 2019,

see Def.’s Mot. at 8, 15–18 (citing 2020 Report).

In other words, sustained flooding is the norm in Issaquena County. No

“objective” individual or governing entity, Grass Valley Terrace, 46 Fed. Cl. at 63, in

the Board’s position, would be oblivious of “actual knowledge of all the relevant facts

in order for the cause of action to accrue,” Fallini, 56 F.3d at 1380. Rather, steering

Issaquena County through each ordeal is standard for the Board and, therefore, it

possessed the “means” to discover a Fifth Amendment taking violation due to the Yazoo

Backwater Project’s operation, meaning the closing of the floodgates, decades before

the Board filed its claims. Wood, 101 U.S. at 143 (“[T]he means of knowledge are the

same thing in effect as knowledge itself.”); e.g., Gromo, 1993 WL 456408, at *2

(affirming a dismissal for violating the Tucker Act’s statute of limitations because the

-9-

plaintiff had the means to discover his claim had accrued); see Oral Arg. 8:11–8:19

(“[The Board] has conceded this point. [It] did not address or respond to these public

sources or the [defendant’s] argument based on them. But more than that, these public

sources show that a reasonable inquiry . . . would have led them to discover their

alleged claim.”). Literally, the Court could randomly select a flood year—be it 1979,

1983, 2002, or 2013—and still, the Board would be late by years under the Tucker Act’s

six-year allowance. 28 U.S.C. § 2501. This point is true because monthslong

flooding—especially, as alleged, severely damaging flooding that reoccurred over

decades—is not hidden. See generally Second Am. Compl. Quite the opposite, really,

and this Court will not pretend otherwise.

The stabilization doctrine reinforces this conclusion. Flooding is obviously a

“continuous” process: A river’s water level rises, then falls, and might even rise again

before finally receding. See Dickinson, 331 U.S. at 749. Put simply, pinpointing when

flooding becomes a taking can be an imprecise endeavor, sometimes permeated with

“uncertain[ty].” Dow, 357 U.S. at 27. Accordingly, the stabilization doctrine accounts

for nature’s “diverse circumstances” by “avoid[ing]” technocratic “rigidities” in

enforcing statutory deadlines. Id. Only when a flood’s continuous process becomes

evident and is reasonably foreseeable to reoccur on plaintiff’s property—i.e., likely to

damage or invade the Board’s property again—does the taking stabilize and the

statutory timer start. See Boling, 220 F.3d at 1371; cf. Corner Post, Inc. v. Bd. of

Governors of Fed. Rsrv. Sys., 144 S. Ct. 2440, 2450 (2024) (“A right of action ‘accrues’

when the plaintiff has a ‘complete and present cause of action’—i.e., when [he or] she

has the right to ‘file suit and obtain relief.’ . . . [S]o the statute of limitations does not

begin to run until [he or] she is injured.” (quoting Green v. Brennan, 578 U.S. 547, 554

(2016) (internal quotation marks omitted)).

The Board’s alleged injury has been apparent for some time. As discussed

thoroughly in this opinion, Issaquena County—which, it cannot be overemphasized, is

governed by the Board—has suffered repeated monthslong flooding potentially

originating from the Yazoo Backwater Project. See Part I.A., supra, at 2–5; see also

Second. Am. Compl. at 6. The Army Corp of Engineers has been aware of this issue for

years, see Def.’s Mot. at 7–9, 15–18 (citing 2020 Report), as has the public, see

Barringer, supra, at 5. Even the federal judiciary has been aware of similar issues in

the Mississippi Delta. E.g., State of Mississippi v. United States, 173 Fed. Cl. 91, 101

(2024) (holding that the State of Mississippi’s suit was barred because “the alleged

[flood] taking was evident—and thus, the six-year limitations period began to run—well

before February 2013” when the State of Mississippi filed suit). So, it belies

commonsense that Issaquena County’s Board just now—almost fifty years later after the

first post-Yazoo Backwater Project flood—discovered its Fifth Amendment taking

claim. Cf. Gromo, 1993 WL 456408, at *2 (holding that the appellee “failed to carry

his burden of proving that the facts underlying his claim were inherently unknowable

because it is reasonable to conclude that such facts could have been uncovered in the

exercise of due diligence.” (internal quotation marks omitted)). At minimum, the Board

should have had an inkling that something was amiss and used its governmental

- 10 -

“means” to discover that a taking may have occurred. E.g., id.; see Wood, 101 U.S. at

143. But for over forty years, the Board never pressed its rights.

“The contention [offered by the Board that] the filing of a [Fifth Amendment

Taking Clause] lawsuit can be postponed until the full extent of the damage is known

has been soundly rejected,” Boling, 220 F.3d at 1371; compare id., with Pl.’s Resp. at

3–5, and Def.’s Reply at 2–4, meaning the Board’s taking injury does need to reach its

maximum harm for the statutory timer to begin, see Delaware State Coll., 449 U.S. at

258. The Court instead focuses “upon the time of the [defendant's] acts, not upon the

time at which the consequences of the acts become most painful.” Id. (emphasis

added). As applied, the time when defendant’s Yazoo Backwater Project actions were

clear was, at minimum, in 2008—the year The New York Times reported about the Yazoo

Backwater Project’s floodgates exacerbating flooding in Issaquena County,

Mississippi—which would have put the six-year statutory deadline around 2014. See

Barringer, supra, at 5. Pointing to Issaquena County’s “worse ‘backwater’ flood in [its]

history,” see Pl.’s Resp. at 4, is therefore “beside the point,” see Def.’s Reply at 3. A

new and worse flood, as both the Federal Circuit and this Court have repeatedly

emphasized, does not reset the Tucker Act’s statutory deadline; stabilization only tolls

the statute of limitations when it is unclear if a government action, not nature’s actions,

is potentially causing the flooding. See Boling, 220 F.3d at 1371. Defendant controls

many things, but rain patterns are not in its wheelhouse. The Board, as a result, should

have sued far earlier.

Ultimately, Mark Twain wrote it best: “You cannot surprise an individual more

than twice with the same marvel.” M ARK T WAIN , L IFE ON THE M ISSISSIPPI 487 (1917).

Issaquena County’s marvel—disastrous recurrent flooding—has come not once, not

twice, not thrice, but at least fourteen times over the forty years since the Yazoo

Backwater Project’s construction. The Board therefore has been on clear notice to sue

for a taking—if one really exists. Fallini, 56 F.3d at 1380. But it did not do so. The

Tucker Act’s six-year statute of limitations, accordingly, slams its “absolut[ist]”

courtroom door to the Board’s forty-five-year-old claim. John R. Sand & Gravel Co.,

552 U.S. at 135.

* * *

Because the Board’s claim is statutorily barred, the Court will not address the

“plausibility” of its claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 560 (2007). That

said, like defendant, the Court seriously doubts that the Board explained “how the

[Yazoo Backwater] Project . . . physically execrated flooding” in the County as required

by the Federal Circuit. Bd. of Supervisors of Issaquena Cnty., Mississippi, 84 F.4th at

1369; see also Def.’s Mot. at 19–29 (moving to dismiss for failure to state a claim under

RCFC 12(b)(6)). It seems this ‘but-for’ inquiry is still missing in the complaint—a

determination that, like previously, would prove fatal. E.g., Bd. of Supervisors of

Issaquena Cnty., 160 Fed. Cl. at 302, 304–07; accord Sponenbarger, 308 U.S. at 267

(“[T]he District Court justifiably found that the program of the 1928 Act has greatly

reduced the flood menace to respondent's land by improving her protection from floods.

- 11 -

Under these circumstances, respondent's land has not been taken within the meaning of

the Fifth Amendment.”). The Court nonetheless refrains from analyzing further.

IV. Conclusion

Floodwaters recede and evaporate—but statutory deadlines are unwavering.

Because the Board filed its suit decades late, dismissal for lack of subject-matter

jurisdiction is required. See R. Ct. Fed. Cl. 12(h)(3). Despite the foregoing, the Board

can pursue the Court’s alternative congressional reference jurisdiction. Specifically, the

Board could seek the United States Congress to require the Court provide Congress with

an advisory opinion making recommendations on whether the Board’s claim is

meritorious or is seeking a mere “gratuity.” 28 U.S.C. § 2509(c). Further information

on this process may be found at 28 U.S.C. § 1492.

Defendant’s Motion to Dismiss for Lack of Subject-Matter Jurisdiction, ECF No.

30, is GRANTED. The Clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/ Loren A. Smith

Loren A. Smith,

Senior Judge

- 12 -