The opinion
In the United States Court of Federal Claims
No. 12-382
(Filed: 10 August 2026)
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BILOXI MARSH LANDS *
CORPORATION, et.al., *
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Plaintiffs, *
*
v. *
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THE UNITED STATES, *
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Defendant. *
*
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Camilo K. Salas, III, Salas & Co., L.C., with whom were Michael G. Stag, Ashley M.
Liuzza, and Matthew D. Rogenes, Stag Liuzza L.L.C., all of New Orleans, Louisiana, for
plaintiffs.
Erik Van de Stouwe, Trial Attorney, with whom were Young Kang, Trial Attorney, and
Adam R. F. Gustafson, Principal Deputy Assistant Attorney General, Environment & Natural
Resources Division, Department of Justice, all of Washinton, DC, for defendant.
OPINION AND ORDER
HOLTE, Judge.
Plaintiffs Biloxi Marsh Lands Corporation (“Biloxi”), Lake Eugenie Land &
Development, Inc. (“Lake Eugenie”), Borgnemouth Realty Co., Limited (“Borgnemouth”), The
Livaudais Company, LLC (“Livaudais”), Terre Aux Boeufs Land Co., Inc. (“Terre Aux
Boeufs”), and Vincent Marshlands, LLC (“Vincent Marshlands” or “Vincent”) (collectively,
“plaintiffs”), allege the United States permanently took their properties for public use through
inverse condemnation, without providing them just compensation, in violation of the United
States Constitution, federal statutes, and certain servitudes granted by plaintiffs and assigned to
the United States. Further, plaintiffs alleged the United States was liable for damage to
plaintiffs’ estates under the contracts granting a servitude to construct an outlet canal on their
properties. The government filed its Motion for Summary Judgment on 22 November 2024
arguing plaintiffs’ takings and contract claims are barred by this court’s six-year statute of
limitations and lack merit regardless. After revisions, plaintiffs filed their Cross-Motion for
Partial Summary Judgment on the issue of liability on 22 April 2025 addressing the same issues.
The Court held oral argument on the Cross-Motions for Summary Judgment on 4 November
2025 in New Orleans, Louisiana. For the following reasons, the Court grants in part and denies
in part the government’s Motion for Summary Judgment, and denies plaintiffs’ Cross-Motion for
Partial Summary Judgment on the Issue of Liability.
I. Factual Background
The factual background of this case was previously outlined in the Court’s 19 January
2021 Opinion and Order: 1
A. The Mississippi River Gulf Outlet
In the 1940s there were three primary water navigation routes in southeast
Louisiana: the Inner Harbor Navigation Canal (“IHNC”), the Gulf Intracoastal
Waterway (“GIWW”), and the Mississippi River. Pls.’ Corrected Mem. Submitted
(1) in Opp. to the U.S.’ Mot. for Summary Judgment on the Issue of the Timeliness
of Pls.’ Takings Claims; and (2) in Supp. of Pls.’ Cross-Mot. for Summary
Judgment on the Same Issue, ECF No. 110, (“Pls.’ Mot. for Partial Summ. J.”), Ex.
39 at 3-40 (Mississippi River Gulf Outlet (MGRO) Ecosystem Restoration Plan,
Final Environmental Impact Statement (June 2012)). In 1956, Congress authorized
construction of a fourth route—the Mississippi River Gulf Outlet (“MRGO”). Pls.’
Mot. for Partial Summ. J., Ex. 2 at 1 (U.S. Army Corps of Engineers, MRGO
Design Memorandum No. 1-B). The 76-mile-long, 36-foot-deep, 650-foot surface
width, and 500-foot bottom width channel would soon connect the INHC and the
38-foot depth contour in the Gulf of Mexico. Id. at 1–3. The purpose of the MRGO
“was to increase commerce by providing a direct connection between the port of
New Orleans and the Gulf of Mexico.” St. Bernard Parish Gov. v. United States,
887 F.3d 1354, 1357 (Fed. Cir. 2018).
In March of 1956, the Port of New Orleans (“the Port”) became the
designated non-federal sponsor of the MRGO. Pls.’ Mot. for Partial Summ. J., Ex.
2 at 1 (U.S. Army Corps of Engineers, MRGO Design Memorandum No. 1-B). As
such, Port Commissioners pursued acquisition of lands and obtained acts of
assurance of local cooperation, which included the furnishing of all lands,
easements, rights-of-way, and spoil disposal areas by the State of Louisiana. Id. at
6.
In April of 1958, the Department of the Interior, in a draft preliminary report
prepared for the Army Corps of Engineers (“USACE” or “the Corps”), predicted
ecological damage would result from the construction and operation of the MRGO.
See United States Mot. for Summary Judgment and Supporting Mem., ECF No. 99,
(“Gov. Mot. Summ. J.”), Ex. 1, at 8 (citing U.S. Department of the Interior, An
Interim Report on Fish and Wildlife Resources as Related to Mississippi River-Gulf
1
At oral argument, the Court invited the parties to note any disputes they may have with the facts as the Court
described them in its 2021 Order. In a JSR following oral argument, the government noted two disputes with the
Court’s recitation of the facts related to the 1958 Department of the Interior Draft Preliminary Report and the 1986
Water Resources Development Act (“WRDA”). See 22 January Joint Status Report at 1–5, ECF No. 293. Plaintiffs
disagreed with the government’s disputes. See id. at 5–9. Neither the Draft Preliminary Report nor the 1986
WRDA impact the Court’s decision on the parties’ cross-motions for summary judgment in this opinion. While the
Court does not address these disputes today, the parties remain free to raise these factual issues if they become
relevant in a future proceeding.
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Outlet Project, Louisiana and an Outline of Proposed Fish and Wildlife Studies
(1958)). In the report, the Secretary of the Department of the Interior wrote the
Secretary of the Army, noting “the project is of great concern to fish and wildlife
conservationists” and “the project plans had not been investigated by fish and
wildlife conservation agencies, as contemplated in Wildlife Coordination Act of
August 14, 1946.” Id. (emphasis added in the government’s brief).
Without further agency investigation, the Corps began construction of the
outlet in 1958, dredging shallow bays, coastal marshes, and cypress swamps. Pls.’
Mot. for Partial Summ. J., Ex. 51 at 2 (U.S. Army Corps of Engineers, MRGO Deep
Draft De-authorization Study: Executive Summary). Construction of the MRGO
cut through Bayous Bienvenue, Dupre, La Loutre, and the Bayou La Loutre Ridge
and resulted in the direct connection of Lake Borgne to the Gulf of Mexico through
Breton Sound. Pls.’ Mot. for Partial Summ. J., Ex. 39 at 3-40 (Mississippi River
Gulf Outlet (MGRO) Ecosystem Restoration Plan, Final Environmental Impact
Statement (June 2012)). In 1965, Congress authorized construction of a hurricane
protection levee along the south bank of the MRGO. Pub. L. No. 89-298, 79 Stat.
1073 (Oct. 27, 1965).
The Corps completed construction of the MRGO in 1968. St. Bernard
Parish Gov., 887 F.3d at 1357. From 1968 to 2009, the MRGO provided deep
water vessels direct access from the Gulf of Mexico to the Port of New Orleans.
Pls.’ Resp./Opp. to the U.S.’ Mot. to Dismiss the Compl. for Lack of Jurisdiction,
ECF No. 14 (“Pls.’ Resp. to Mot. to Dismiss”), Ex. 2, pt. 1 at iv (U.S. Army Corps
of Engineers, Integrated Final Report to Congress and Legislative Environmental
Impact Statement for the MRGO Deep-Draft De-authorization Study (November
2007)); Pls.’ Mot. for Partial Summ. J., Ex. 51 at 2 (U.S. Army Corps of Engineers,
MRGO Deep Draft De-authorization Study: Executive Summary). The MRGO
extended approximately 70 miles from Breton Sound to eastern New Orleans,
traversing wetlands and marshes in Plaquemines, St. Bernard, and eastern Orleans
Parishes. Pls.’ Mot. for Partial Summ. J., Ex. 39 at 3-28 (Mississippi River Gulf
Outlet (MGRO) Ecosystem Restoration Plan, Final Environmental Impact
Statement (June 2012)). The MRGO provided a pathway for large ships to do
business at the Port and created jobs reliant on the channel. Id. at 3-40–3-41. With
those ships and jobs, however, came saltwater and damaging ecological change to
the area surrounding the MRGO. Pls.’ Resp. to Mot. to Dismiss, Ex. 2, pt. 1, at iv
(U.S. Army Corps of Engineers, Integrated Final Report to Congress and
Legislative Environmental Impact Statement for the MRGO Deep-Draft De-
authorization Study (November 2007)).
B. Environmental Damage and Restoration: Reports and
Legislation
Construction of the MRGO converted and eliminated thousands of acres of
wetlands. Id. at iv. The “[m]ost significant environmental effects occurred in the
first 20 years after the MRGO [was] constructed.” Pls.’ Mot. for Partial Summ. J.,
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Ex. 56 at 43 (U.S. Army Corps of Engineers, MRGO Studies). In the first 20 years,
construction destroyed 2,500 acres of wetlands and erosion along the banks of the
newly constructed MRGO destroyed an additional 4,220 acres. Id.
In October 1972, Coastal Environments, Inc., prepared an Environmental
Baseline Study for the St. Bernard Parish Police Jury. See Gov. Mot. for Summ. J.,
Ex. 19 (St. Bernard Parish Policy Jury, Environmental Baseline Study (October
1972)). The purpose of the study was “to provide an environmental baseline of [St.
Bernard] parish as it currently exists, taking into consideration cultural and natural
factors that have modified the landscape . . . [and] to set management guidelines
for the system and provide a basis upon which future modifications to the
environment can be judged with a high degree of predictability concerning probable
impact.” Id. at 2. In relation to the MRGO, the study stated:
Of all navigation channels in coastal Louisiana, the [MRGO] has
probably had the greatest environmental impact. . . . Construction
of the channel destroyed 23,606 acres of marsh and shallow nursery
areas—17,058 acres of spoil deposition and 6,548 acres by
deepening.
Secondary effects are equally serious. The channel has greatly
altered the hydrology and water chemistry of adjacent estuarine
areas. The large cross-section of the area provides an avenue of
ingress and egress for runoff tidal waters. Changes in salinity are
well-documented. Recording stations in the vicinity of the channel
show significant changes after the canal was opened (about 1959)
and completed (1962).
. . . The thick sequence of poorly consolidated sediment through
which the channel was excavated has created highly unstable bank
conditions and massive slumping is common. . . . The result of this
condition has been a continuous and costly program of maintenance
dredging. Undesirable effects of this dredging include increased
turbidity and the impact on fauna and flora of spoil disposal.
Id. at 86–88, 93 (internal citation omitted). According to the 1972 study, “signs of
deterioration [were] evident in the death of trees and opening up of water bodies”
and the “change in water regime seems to be the main cause of deterioration.” Id.
at 65–66. The study states, “[t]he MRGO has introduced higher salinities into the
study area” and cites drastic changes in parts per thousand at Lake Borgne stations
BDL and I-3 “from an average surface salinity of 3.0 ppt in 1959–61 to 10.4 ppt in
1962–64, an increase of over three times.” Id. at 66.
In 1982, Coastal Environments, Inc., prepared an additional study. See Gov.
Mot. for Summ. J., Ex. 18 (St. Bernard Parish Police Jury, St. Bernard Parish: A
Study in Wetland Management (1982)). The study explains, “[o]ne of the major
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causes of wetland deterioration in St. Bernard Parish appears to be closely related
to the proliferation of deep navigation and drainage canals connecting the Gulf and
interior wetlands.” Id. at 117. The study continues, “[s]ome of the more noticeable
primary and secondary environmental impacts often attributable to canals
[include] . . . saltwater intrusion, . . . erosion . . . and consequent loss of marshlands,
. . . loss of stable, lower salinity estuarine nursery areas, [and] loss of biological
diversity as nonsalt-tolerant [sic] species are squeezed out by higher salinities.” Id.
In November 1984, the Corps prepared a study of the area. See Pls.’ Mot.
for Partial Summ. J., Ex. 40 (U.S. Army Corps of Engineers, Louisiana Coastal
Area, Louisiana—Land Loss and Marsh Creation—Initial Evaluation Report
(November 1984)) (“1984 Initial Evaluation Study”). Therein, the Corps stated
“[t]he marshes are disappearing at the alarming rate of 39.6 square miles per year
due to compaction, subsidence, sea level rise, erosion, saltwater intrusion, and
man’s activities. The land loss trend is expected to continue and, by year 2040,
about 1,000,000 acres of wetlands could disappear beneath the gulf.” Id. at
Syllabus. The study presented “the findings of the initial evaluation study of plans
to reduce land loss and create marsh in the coastal area of Louisiana.” Id. at 1. The
Corps noted “[a]s a result of the analysis of changing conditions, the needs and
opportunities and concerns of Federal, state, and local interests, . . . objectives were
established.” Id. at 62. These objectives included: “Create marsh to offset losses”;
“[e]nhance marsh vegetative growth to reduce marsh losses and increase the
nutrient and detritus supply for fish and wildlife production”; and “[r]educe
subsidence, erosion, and saltwater intrusion to reduce marsh losses.” Id.
In 1986 Congress enacted the Water Resources and Development Act
(“WRDA”), which in part instructs the “Secretary of USACE to determine the need
for modifications in the structure and operations of [the MRGO] for the purpose of
improving the quality of the environment . . . .” Pls.’ Mot. for Partial Summ. J. at
25. In 1988, the Corps conducted a reconnaissance study of the MRGO’s bank
erosion and erosion-related problems in Orleans and St. Bernard Parishes,
Louisiana. Id. at 8–9. The purpose of the study was to:
[D]efine the extent of erosion and erosion-related problems
projected to occur in the study area; identify opportunities to
implement potential solutions to the defined problems; appraise
Federal interest in potential solutions[;] . . . determine, based on the
appraisal, whether planning should proceed beyond the
reconnaissance phase into more detailed feasibility phase
considerations; estimate the time and cost required to complete
feasibility phase studies if Federal interest is indicated; and assess
the level of interest and support of non-Federal interests in the
identified potential solutions to defined problems.
Pls.’ Mot. for Partial Summ. J., Ex. 7 (Mississippi River-Gulf Outlet St. Bernard
Parish, La.—Bank Erosion—Reconnaissance Report, February 1988) (“1988
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Reconnaissance Report”) at 2–3. The Corps warned of erosion if there were no
remedial actions:
The unleveed banks of the MRGO will continue to erode in the
absence of remedial action. Currently, banks of the unleveed
reached are retreating at rates from five to over 40 feet per year. The
average rate of retreat of the north bank in the 41-mile land cut
portion of the waterway is 15 ft per year. Failure to reduce bank
erosion will result in a significant increase in the required
maintenance dredging of the waterway in the future. Annual
average maintenance dredging requirements are projected to
increase six-fold within the next 15 years (by the year 2002).
Id. at 30–31.
In 1990, Congress passed the Water Resource Development Act of 1990,
directing the Secretary of the Army to “include environmental protection as one of
the primary missions of the Corps of Engineers in planning, designing,
construction, operating, and maintaining water resources projects” and stating the
Corps shall have “an interim goal of no overall net loss of the Nation’s remaining
wetlands base, as defined by acreage and function, and a long-term goal to increase
the quality and quantity of the Nation’s wetlands, as defined by acreage and
function.” Water Resource Development Act of 1990, Pub. L. No. 101-640, tit. III,
§ 307(a), 104 Stat. 4604 (1990) (codified at 33 U.S.C. § 2317) (“1990 WRDA”).
Additional legislation in 1990 included the Coastal Wetlands Planning, Protection
and Restoration Act (the “Breaux Act”), which directed the Corps to establish a
comprehensive plan to restore Louisiana wetlands and called for the development
of annual lists of “priority projects” which would “provide for the long-term
conservation of [Louisiana’s] wetlands . . . .” Pls.’ Mot. for Partial Summ. J., Ex.
42 at 3–4 (1994 MRGO Bank Erosion Reconnaissance Report). In 1993, a task
force submitted a plan to restore and prevent further loss of Louisiana wetlands by
“increas[ing] sediment and freshwater input into coastal estuaries” so as to “restart
the natural processes of land building and maintenance.” Pls.’ Mot. for Partial
Summ. J., Ex. 41 at 9 (1993 Louisiana Coastal Wetlands Restoration Plan). The
task force behind the 1993 Louisiana Coastal Wetlands Restoration Plan developed
a “comprehensive approach to restore and prevent the loss of coastal wetlands in
Louisiana” by using hydrologic restoration, shoreline protection, marsh creation
with dredged materials, and marsh management. Id. at 4, 9.
The Breaux Act required the Corps to establish a comprehensive plan to
restore Louisiana wetlands exclusively. Pls.’ Mot. for Partial Summ. J. at 39. The
act authorized 143 projects to “create, protect, or restore over 120,000 acres of
wetlands in coastal Louisiana” and dedicated $40 million annually to restoring
wetlands in Louisiana and was still being implemented through 2001 or later. Id.
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In 2000, the Environmental Protection Agency (“EPA”) suggested closure
of the MRGO at the Bayou LaLoutre Ridge and offered a 10-year program to
restore and manage wetland resources, including freshwater diversions into the
Central Wetlands area. Pls.’ Mot. for Partial Summ. J., Ex. 45 at 2–3 (U.S. Army
Corps of Engineers, Louisiana Coastal Area (LCA), Louisiana, Ecosystem
Restoration Study (November 2004)). The report recognized the substantial land
erosion caused by the MRGO and declared “[a]s long as the MRGO remains
authorized to provide deep-draft navigation, ecosystem protection measures are
critically needed to minimize further wetland loss and preserve the opportunities
for future restoration.” Id. at 2. Recommendations by the report included
construction of rock breakwaters along the shores of the MRGO, the beneficial use
of dredged material for marsh creation, freshwater introduction, barrier island
restoration, and “channel modification to develop a suite of measures to stabilize
and maintain important estuarine components. Id. at 3.
Four years later, the Corps’ “Louisiana Coastal Area, Ecosystem
Restoration Study” disclosed the “rate of wetland loss in the area is accelerating”
and “rapid action is required to protect the integrity of the southern Lake Borgne
shoreline and to prevent continued erosion of the MRGO channel banks from ocean
going vessel wakes.” Pls.’ Mot. for Partial Summ. J., Ex. 45 at 32 (U.S. Army
Corps of Engineers, Louisiana Coastal Area (LCA), Louisiana, Ecosystem
Restoration Study (November 2004)). In the same 2004 study, the Corps proposed
building “38 miles of rock breakwaters to prevent the merger of the MRGO into
Lake Borgne, facilitating wetland creation by using dedicated dredging and/or
beneficial use of dredged materials behind the breakwaters, and freshwater
introduction into the marsh through Mississippi River diversions.” Id. The Corps’
“Operations and Maintenance Bank Protection” program completed, scheduled, or
proposed installation of foreshore protection, dredged material retention, and
articulated mattress along over 90 percent of the length of the MRGO. Pls.’ Reply
Br. Submitted (1) in Opp. to the U.S.’ Mot. for Summary Judgment on the Issue of
the Timeliness of the Pls.’ Takings Claims and (2) in Supp. of Pls.’ Cross-Mot. for
Summary Judgment on the Same Issue, ECF No. 135, (“Pls.’ Reply Br. Opp’n”),
Ex. 57 at 1.
C. The MRGO After Hurricane Katrina
“Hurricane Katrina was ‘one of the most devastating hurricanes that has
ever hit the United States, generating the largest storm surge elevations in the
history of the United States.’” St. Bernard Parish Gov., 887 F.3d at 1358 (quoting
In re Katrina Canal Breaches Consol. Litig., 647 F.Supp.2d 644, 678 (E.D. La.
2009)). Katrina caused severe shoaling in the MRGO, which in turn drastically
changed the channel depth of the outlet. Pls.’ Mot. for Partial Summ. J., Ex. 51 at
3 (U.S. Army Corps of Engineers, MRGO Deep Draft De-authorization Study:
Executive Summary). After the 2005 Hurricane season, the MRGO was not
navigable as a deep draft waterway. Id. Dredging to restore the outlet to its
originally authorized dimensions would have cost over $133 million. Id. To avoid
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re-dredging, the Corps limited its maintenance of the outlet to provide for only one-
way traffic. Id. at 7. The Corps thereafter stopped all maintenance dredging of the
MRGO in 2006, thereby halting the beneficial use of dredged materials programs.
Pls.’ Mot. for Partial Summ. J. at 3. In light of the damage to the MRGO and the
high cost of fixing the damage, the Corps recommended total closure of the MRGO
by erection of a rock dike across its entire width and the construction of other “rock
dikes that protect wetlands along the MRGO.” Pls.’ Mot. for Partial Summ. J., Ex.
51 at 13 (U.S. Army Corps of Engineers, MRGO Deep Draft De-authorization
Study: Executive Summary).
In 2007, the Corps stated in a report to Congress “habitat shifts caused by
saline waters brought in by the MRGO might have caused . . . 3,350 acres of
fresh/intermediate marsh and 8,000 acres of cypress swamp [to be] converted to
brackish marsh and 19,170 acres of brackish marsh and swamp [to] become saline
marsh.” Pls.’ Mot. for Partial Summ. J., Ex. 52 at iv (Integrated Final Report to
Congress and Legislative Environmental Impact Statement for the Mississippi
River-Gulf Outlet Deep-Draft De-authorization Study). In addition, the Corps
noted “[b]ank erosion along the MRGO has been estimated to occur at rates of
between 27 and 38 feet per year” and “[b]etween 1964 and 1996, 5,324 acres of
marsh have been lost adjacent to the MRGO channel . . . .” Id.
The Corps announced a plan in 2007 to close the MRGO by 9 July 2009
because of the cost associated with repair and the potential for great ecological
harm. Pls.’ Resp. to Mot. to Dismiss, Ex. 2, pt. 1 at 3 (U.S. Army Corps of
Engineers, Integrated Final Report to Congress and Legislative Environmental
Impact Statement for the MRGO Deep-Draft De-authorization Study (November
2007)). The Corps further published plans outlining ongoing, scheduled, and
proposed restoration efforts to bolster the wetlands areas affected by the MRGO.
Id. at 6–7. Congress again passed the WRDA in 2007 and authorized restoration
projects paired with a federally funded study. The projects required a non-federal
partner to agree to bear costs alongside the federal government, but no such partner
came forward. Id.
On 2 October 2008 the Corps announced it was developing a
“comprehensive ecosystem restoration plan to restore the areas affected by the
MRGO navigation channel.” Intent to Prepare a Draft Environmental Impact
Statement for the Mississippi River-Gulf Outlet Ecosystem Restoration Feasibility
Study, 73 Fed. Reg. 57,340, 57,341 (Sep. 23, 2008). The announcement included
the following goals:
(1) Physically modifying the MRGO channel and restoring areas
affected by the channel; (2) restoring natural ecosystem features to
reduce damage from storm surge; (3) measures preventing saltwater
intrusion into the waterway; (4) measures protecting, restoring or
increasing wetlands to prevent saltwater intrusion or storm surge;
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(5) measures reducing risk of storm damage to communities by
preventing or reducing wetland losses or restoring wetlands.
Id. The Corps officially de-authorized the MRGO from the Gulf Intracoastal
Waterway to the Gulf of Mexico in accordance with the 2007 WRDA on 5 June
2008. Amended Compl., ECF No. 37 (“Am. Compl.”), Ex. 2 at xvii–xviii. The
outlet officially closed on 9 July 2009. Id.
Congress and the President directed the Corps to develop a full range of
flood control, coastal restoration, and hurricane protection measures exclusive of
normal policy considerations for South Louisiana through the Coast 2050 Plan, the
2004 LCA Plan, the Breaux Act, and the 2007 WRDA. See Pls.’ List of Citations
and Excerpts in Chronological Order Which Correspond to Each of the Agreed
Subunits in a “Justifiable Uncertainty” Analysis, ECF No. 165 (“Pls.’ Supp.
Paper”) at 8–9, 27–28. These directions included the creation of a long-term,
comprehensive plan “for protecting, preserving, and restoring Coastal Louisiana
ecosystem.” Pls.’ Mot. for Partial Summ. J., Ex. 49 (U.S. Army Corps of
Engineers, Lake Borgne – Mississippi River Gulf Outlet Shoreline Protection
(PO-32), St. Bernard Parish, Louisiana, Final Design Report (December 2004)).
The Corps separated project goals into two categories in its 2012 Final
Feasibility Report: “geomorphic” and “habitat specific.” Pls.’ Reply Br. Opp’n,
Ex. 55 at S-12 and S-13 (U.S. Army Corps of Engineers, Mississippi River Gulf
Outlet (MRGO) Ecosystem Restoration Plan: Final Feasibility Report (June 2012))
(“2012 Feasibility Report”); see also Pls.’ Mot. for Partial Summ. J., Ex. 39, at
ES-1 (Mississippi River Gulf Outlet (MGRO) Ecosystem Restoration Plan, Final
Environmental Impact Statement (June 2012)). In the category dedicated to
habitat-specific goals, the Corps stated one goal is “to restore historic salinity
conditions in the study area, restore native habitat acreages impacted by the MRGO
and their ecosystem functions, and increase the year-round spatial coverage of
critical landscape features that provide hurricane and storm surge damage risk
reduction in the study area.” 2012 Feasibility Report at S-12 and S-13.
D. Plaintiffs’ Land Ownership
Property owners collectively lost thousands of acres of land since
construction of the MRGO. Pls.’ Resp. to Mot. to Dismiss., Ex. 2, pt. 1 at iv (U.S.
Army Corps of Engineers, Integrated Final Report to Congress and Legislative
Environmental Impact Statement for the MRGO Deep-Draft De-authorization
Study (November 2007)). Plaintiffs are six property owners with land in the area
around the MRGO who allege the Corps, through the construction and maintenance
of the MRGO, took their land “for public use without exercising the power of
eminent domain and without providing plaintiffs just compensation in violation of
the U.S. Constitution.” Am. Compl. at 1.
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The United States obtained servitudes from landowners, including
plaintiffs, which permitted use of land within 1,500 feet from the channel’s original
centerline. Id. at 4. Specifically, plaintiff Biloxi granted to the United States “a
right of entry in and to any and all lands [it] owned . . . in that portion of the Parish
of St. Bernard, State of Louisiana, lying south and east of Bayou La Loutre, for the
purpose of such dredging and spoil disposal operations.” Id. at 5–6. At about the
same time—the exact date being unknown at this time due to the destruction of
records at the St. Bernard Parish Court House caused by Hurricane Katrina in
2005—plaintiffs Lake Eugenie, Borgnemouth, Livaudais, and Vincent Marshland
granted to the Port similar 1,500-foot-wide servitudes, on land owned by these
companies, for the construction and maintenance of the MRGO. Id. at 6; see also
Gov. Mot. for Summ. J., Exs. 1–4 (four plaintiffs’ complaints, later consolidated as
the present case). Each plaintiff also granted to the Port a right of entry and
temporary spoil disposal servitudes, which the Port assigned to the United States
through the Corps. Id.
Plaintiffs own separate pieces of land throughout the affected region. See,
e.g., Am. Compl. at 3–7. Plaintiffs Biloxi and Lake Eugenie own property in the
Biloxi Marsh and have their principal places of business in Metairie, Louisiana.
Am. Compl. at 6. Plaintiff Terre Aux Boeufs also owns property in Biloxi Marsh
complex, plus a separate plot south of the MRGO. Gov. Mot. for Summ. J., Ex. 3
at 4 (Compl., Terre Aux Boeufs Land Co., Inc., 15-710, ECF No. 1 (July 8, 2015).
Terre Aux Boeufs’s business operates out of New Orleans, Louisiana. Id. at 3. The
property Borgnemouth owns consists of around 7,000 acres and includes Proctor’s
Point, the coastline peninsula landmark cutting into Lake Borgne. Gov. Mot. for
Summ. J., Ex. 2 (Compl., The Borgnemouth Realty Co., Limited and The Livaudais
Company, L.L.C. v. U.S. 14-3, ECF No. 1 (January 2, 2014). Borgnemouth’s two
tracts of land span from Proctor’s Point to the MRGO and southwest of the MRGO.
Id. at 9. The land Livaudais owns consists of two tracts “located just north of and
adjacent to” the land Borgnemouth owns. Id. at 5. Livaudais also owns an
undivided one-sixth interest in the area known as the Golden Triangle. Id.
Borgnemouth and Livaudais operate out of Meraux, Louisiana. Id. at 3. Vincent
Marshlands is based in Harahan, Louisiana. Gov. Mot. for Summ. J., Ex. 4.
Vincent Marshlands owns an undivided one-half interest in the Chalmette
Meadows Property the MRGO touches. Id. Trinity Church, a Louisiana nonprofit
corporation (“Trinity Church”); the Rector and Visitors of the University of
Virginia, a Virginia public corporation (“University of Virginia”); and the
Administrators of Tulane Educational Fund, a Louisiana nonprofit corporation
(“Tulane University”) formed Vincent Marshlands in October 2008 to manage their
respective one-third shares of an undivided one-half interest in the Chalmette
Meadows Property. Id. Hugh E. Vincent and Frank B. Hayne, Sr. acquired the
Chalmette Meadows Property in December 1916. Id. Upon his death, Hugh E.
Vincent left his undivided interest to these three entities. Id.
Biloxi Marsh Lands Corp. v. United States, 152 Fed. Cl. 254, 260–68 (2021) (Holte, J.).
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II. Procedural History
The procedural history of this case is as much a quagmire as the marshlands at issue. On
15 June 2012, plaintiffs Biloxi and Lake Eugenie filed a complaint alleging the government’s
permanent taking of plaintiffs’ property without just compensation in violation of the Takings
Clause of the Fifth Amendment to the United States Constitution. See Compl. ¶ 1, ECF No. 1.
The government filed a motion to dismiss on 31 August 2012. See Gov’t’s Mot. to Dismiss,
ECF No. 9. On 24 June 2013, the then-assigned judge denied the government’s Motion to
Dismiss, stating “[p]laintiffs are not clearly without our jurisdiction” as “whether the statute of
limitations has run depends on questions of predictability and mitigation” not well addressed at
the motion to dismiss stage. Order Denying Mot. to Dismiss at 3, ECF No. 18.
Plaintiffs filed an amended complaint on 29 October 2013. See Am. Compl., ECF No.
37. This case was consolidated with Borgnemouth Realty Co. v. United States, No. 14-3, on 22
July 2015 and further consolidated with Terre Aux Boeufs Land Co., Inc. v. United States, No.
15-710—which was already consolidated with Vincent Marshlands, LLC et al. v. United States,
No. 15-711—on 30 January 2018. See Order Granting Mot. to Consolidate, ECF No. 59; Order
Consolidating Related Matters, ECF No. 91; Order Consolidating Cases, Vincent Marshlands,
No. 15-711, ECF No. 14. Both parties then filed motions for summary judgment. See Gov’t’s
Motion for Summ. J., ECF No. 99; Pls.’ Mot. for Partial Summ. J., ECF No. 105.
On 29 July 2019, this case was reassigned to the undersigned Judge. See Order
Reassigning Case, ECF No. 136. The Court held oral argument on the motions for summary
judgment in Washington, DC, on 29 June 2020. See Order Granting Mot. to Am. Schedule, ECF
No. 156. On 19 January 2021, the Court granted-in-part and denied-in-part the government’s
motion for summary judgment and denied plaintiffs’ motion for summary judgment. See Biloxi
Marsh Lands Corp. v. United States, 152 Fed. Cl. 254 (2021). In that Order, the Court analyzed
the timeliness of plaintiffs’ takings claims according to seven categories of land. See id. at
310–11. As the Court explained, “[w]hen a taking occurs through gradual processes, two
applicable doctrines assist in determining when the statute of limitations begins to run:
stabilization and justifiable uncertainty.” Id. at 269 (citations omitted). The Court explained,
“the ultimate question in a justifiable uncertainty analysis is whether “the landowners [did or]
did not know when or if their land would be permanently destroyed.” Id. at 312 (emphasis and
alteration in original) (citation and internal quotations omitted). The Court found “[f]or
categories One, Two, Three, Four, Six, and Seven of land, plaintiffs have been able to establish
justifiable uncertainty may” apply, id., but “landowners in Category Five could have only been
justifiably uncertain until as late as 1996,” so the statute of limitations only could have run “as
late as 2002,” id. at 300 (citation omitted). Accordingly, the Court granted the government’s
motion for summary judgment as to category five because plaintiff’s 2012 complaint could not
have come within the jurisdictional statute of limitations. See Biloxi, 152 Fed. Cl. at 310. As for
the remaining categories, the Court held it “cannot definitively say whether or not the
government’s actions created justifiable uncertainty as to the permanency of the alleged
government taking.” Id. at 312 (citation omitted).
On 17 February 2021, plaintiff filed a motion for partial reconsideration of the Court’s 19
January Order, asking the Court “hold that the objective standard must be applied throughout the
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entire analysis of the timeliness of the plaintiffs’ claims and actual knowledge of the Corp’s
activities around the MRGO is not required.” See Pls.’ Mot. for Partial Reconsideration at 14,
ECF No. 169. The Court denied the motion on 27 October 2021, holding “[f]or purposes of
statute of limitations accrual, determining justifiable uncertainty is a two-part inquiry: (1)
whether a landowner’s subjective knowledge of the government’s promises or actions caused the
landowner to be uncertain about the taking’s permanence; and (2) whether government promises
or actions caused the landowner an objectively reasonable uncertainty of the taking’s
permanence.” See Biloxi Marsh Lands Corp. v. United States, 156 Fed. Cl. 301, 319 (2021)
(emphasis in original).
After the Court’s 27 October 2021 Order denying reconsideration, the parties resumed
discovery related to plaintiffs’ claims. See 3 Nov. 2021 Order, ECF No. 200. On 20 September
2023, after additional discovery, the parties proposed a schedule to complete discovery and
submit briefing on summary judgment again regarding: (1) the timeliness of plaintiffs’ takings
claims “left unresolved” in the Court’s 19 January 2021 Order; and (2) legal issues related to
plaintiffs’ contract claims. See 20 Sept. 2023 Joint Status Report (“JSR”) at 1–2. The Court
adopted the parties’ proposed briefing schedule. See 16 Oct. 2023 Order, ECF No. 222.
The government filed its currently pending Motion for Summary Judgment on 22
November 2024. See Gov’t’s Mot. for Summ. J. (“Gov’t’s MSJ”), ECF No. 244. Plaintiffs
initially filed a response and cross-motion for partial summary judgment on 30 December 2024.
See Pls. Mot for Partial Summ. J., ECF No. 253; Pls.’ Response to Gov’t’s MSJ., ECF No. 252.
Plaintiffs later filed the currently pending and combined Revised Response to the Government’s
Motion for Summary Judgment and Cross-Motion for Partial Summary Judgment on the issue of
liability on 22 April 2025. See Pls.’ Rev. Resp. to the Gov’t’s MSJ and Mot. for Partial Summ. J
on the Issue of Liability (“Pls.’ Rev. MSJ”), ECF No. 274. The government filed its response
and reply on 16 May 2025. See Gov’t’s Reply in Support of Mot. for Summ. J. and Opp. to Pls.’
Rev. MSJ (“Gov’t’s Reply”), ECF No. 276. Plaintiffs filed their reply on 13 June 2025. See
Pls.’ Reply in Support of Cross-Mot. for Partial Summ. J. (“Pls.’ Reply”), ECF No. 279. The
Court held oral argument on the cross-motions for summary judgment in New Orleans,
Louisiana on 4 November 2025. See 23 Sept. Order Setting Oral Argument, ECF No. 280.
Shortly after oral argument, the Court ordered the parties to submit a JSR to address any
factual disputes the parties had with the Court’s recitation of facts in its 2021 Order and to
supply additional authority related to plaintiffs’ privity of contract with the government. See 5
Nov. 2025 Order, ECF No. 284. After three extensions and one correction, the parties filed the
JSR on 22 January 2026. See 22 Jan. 2026 JSR, ECF No. 293.
III. Parties’ Arguments
A. The Government’s Argument Plaintiffs’ Fifth Amendment Claims are
Untimely
The government first argues all plaintiffs’ Fifth Amendment claims are untimely because
the Court held in 2021 all their claims stabilized in 1988, thus triggering accrual of the 6-year
statute of limitations. See Gov’t’s MSJ at 15–16, 29, 37, 50–51, 57, 60–63, 67, 68. The
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government asserts plaintiffs’ claims are untimely by decades unless plaintiffs can demonstrate
the doctrine of “justifiable uncertainty” applies to delay accrual of the statute of limitations. See
id. According to the government, “justifiable uncertainty arises only if the Corps actually
undertakes some mitigation activity to redress the government-caused damage or commits itself
to undertake such mitigation activity.” Id. at 16 (citation omitted). The government further
contends “[m]ere consideration of potential projects to achieve some environmental goal cannot
support a claim of justifiable uncertainty because considering possible projects does not commit
the United States to any mitigation activities.” Id. (cleaned up). The government argues
plaintiffs “lacked subjective knowledge of government remediation actions or promises to
remediate MRGO-caused damage on their properties.” Id. at 18 (cleaned up). Both the
government and plaintiffs separated their timeliness arguments into seven categories of land. See
id. at 19–68; Pls.’ Rev. MSJ at 133.
1. Category One — Central Wetlands
The government’s arguments regarding category one are divided according to the
relevant owners. See Gov’t’s MSJ at 19.
a. Vincent’s Category One Property
The government first argues the evidence shows the United States did not make a
promise to plaintiff Vincent to remediate MRGO-caused damage because the testimony of
Michael Taylor (Vincent’s 30(b)(6) witness) shows “[t]he Corps never approached Vincent
about conducting marsh creation activity within the boundaries of the Vincent property.” Id. at
20. The government goes on to argue “[t]he only federal project proposed to occur between
1988 and 2002 on the Vincent property cannot support [plaintiffs’] statute of limitations
argument.” Id. at 25. According to the government, this federal project was a May 1994 letter
from the Port trying “to obtain a right of entry to perform a survey to measure subsidence and
determine which locations will require additional fill to avoid future loss of land.” Id. (citations
and internal quotations omitted). The government contends the letter: (1) came more than six
years after Vincent’s claims accrued; (2) could not have given Vincent subjective knowledge
triggering justifiable uncertainty; and (3) only contemplated “work on non-Category One
properties.” Id. Plaintiffs, in response to the government’s first argument, assert “Mr. Taylor’s
testimony about contacts, or lack of contacts, between the Corps and Vincent Marshlands, LLC
after its formation in 2008 is irrelevant to the issues before the Court” because his testimony was
only meant to relate to “events . . . that occurred after the company was formed in 2008.” Pls.’
Rev. MSJ. at 135–36. In response to the government’s remaining arguments, plaintiffs contend
Karen Freese (an attorney for Vincent) “testified in her deposition that on July 1, 1994 she had a
telephone call with Mr. Bob Gunn, who was the Corps’ Operations Manager of the MRGO.” Id.
at 140. Plaintiffs assert “[a]ccording to Ms. Freese’s contemporaneous notes of the call, Mr.
Gunn told her that the Corps was going to remediate all the damage caused by the MRGO to the
Chalmette Meadows Property. Id.
b. Livaudais and Borgnemouth’s Category One Properties
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Regarding Livaudais and Borgnemouth’s category one properties, the government argues
the United States never promised to remediate the MRGO-caused damage. See Gov’t’s MSJ at
31. The government argues Bruce Wallis gave a 30(b)(6) deposition as a representative of
Livaudais and Borgnemouth, and “could not recall a Corps promise or commitment to undertake
a project to restore MRGO-caused damage.” Id. (citation omitted). Plaintiffs assert multiple
documents addressed in Ms. Delery’s deposition demonstrate “various proposals the Corps made
to Gatien Livaudais and Judge Oliver Delery . . . were implemented starting in 1991 and
continued into the future.” See Pls.’ Rev. MSJ at 159 (citation omitted). Specifically, plaintiffs
highlight, inter alia, “a set of documents containing information . . . about the work the Corps
proposed to do on both shores of the MRGO,” “a set of documents showing attendance by Judge
Delery and Gatien Livaudais, Jr. . . . at the Corps offices to discuss the work the Corps proposed
to perform,” and “a Public Notice that ‘the U.S. Army Engineer District, New Orleans, proposes
to construct bank stabilization between mile 49.9 and mile 56.1 of the Federal navigation
project.’” Id. at 159–60 (citations omitted). Plaintiffs state “[i]n sum, the many proposals made
in writing and in person by the employees of the Port to Mr. Livaudais and Judge Delery created
justifiable uncertainty that tolled the statute of limitations.” Id. at 162.
c. Eugenie’s Category One Properties
The government argues “the United States did not make a ‘mere promise’ to remediate
MRGO-caused damage on Eugenie’s Category One properties.” Id. at 39 (cleaned up). The
government points to Charlton Ogden’s 30(b)(6) testimony representing Biloxi and Eugenie, and
argues Mr. Ogden stated “he was unaware that anyone at the Corps promised anyone associated
with Biloxi or Eugenie to undertake any remediation project associated with the MRGO.” Id.
(citation omitted). The government further argues “Eugenie did not have subject knowledge of a
federal project that might have caused reasonable uncertainty.” Id. at 40 (cleaned up). Plaintiffs
respond “[t]he extensive testimony of Mr. Ogden and the documents that are part of his
deposition clearly show that the landowners did not know when or if their land would be
permanently destroyed and that created justifiable uncertainty.” Pls.’ Rev. MSJ at 169 (internal
quotations omitted).
2. Category Two — South Lake Borgne
a. Vincent’s Category Two Property
The government argues “[t]he same evidence and argument discussed above in relation to
Vincent’s Category One property apply with equal force to Vincent’s Category Two property.”
Gov’t’s MSJ at 31. Plaintiffs respond “[h]ere the government relies on the same evidence and
arguments it made relative to the Vincent Category One Property. Therefore, Plaintiffs will rely
on the same evidence and arguments presented above . . . in response to the government's
arguments.” Pls.’ Rev. MSJ at 171.
b. Livaudais and Borgnemouth’s Category Two Properties
The government argues “[t]he same evidence and argument discussed above in relation to
Livaudais and Borgnemouth’s Category One properties apply with equal force to Livaudais and
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Borgnemouth Category Two properties.” Gov’t’s MSJ at 52. Plaintiffs respond “[h]ere the
government relies on the same evidence and arguments it made relative to the Livaudais’ and
Borgnemouth’s Category One Properties. Therefore, Plaintiffs will rely on the same evidence
and arguments presented above . . . in response to the government’s arguments.” Pls.’ Rev. MSJ
at 171.
c. Biloxi’s Category Two Properties
The government argues “[t]he same evidence and argument discussed above in relation to
Eugenie’s Category One properties apply with equal force to Biloxi’s Category Two properties.”
Gov’t’s MSJ at 59. Plaintiffs respond “[h]ere the government relies on the same evidence [and]
arguments it made relative to the Eugenie’s Category One Properties. Therefore, Plaintiffs will
rely on the same evidence and arguments presented above . . . in response to the government’s
arguments.” Pls.’ Rev. MSJ at 171.
3. Category Three — MRGO Spoil Bank
The government argues “[t]he same evidence and argument discussed above in relation
to” “Vincent’s Category One properties,” “Livaudais and Borgnemouth’s Category One
properties,” and “Eugenie’s Category One properties,” all “apply with equal force” to their
respective properties in category three. Gov’t’s MSJ at 60–61. Plaintiffs respond “the
government relies on the same evidence and arguments it presented relative to” Vincent’s
category one property, Livaudais and Borgnemouth’s category one properties, and Eugenie’s
category one property. Pls.’ Rev. MSJ at 172. Plaintiffs then rely on “the same evidence and
arguments presented above . . . in response to the government’s arguments.” Id.
4. Category Four — Biloxi Marshes Interior
The government argues “[t]he same evidence and argument discussed above in relation to
Eugenie’s Category One properties apply with equal force to Biloxi and Eugenie’s Category
Four properties.” Gov’t’s MSJ at 61. Plaintiffs respond, “[h]ere the government relies on the
same evidence and arguments it presented relative to the Eugenie’s Category One Properties as
applicable to the Biloxi and Eugenie’s Category Four Properties. Therefore, Plaintiffs will rely
on the same evidence and arguments presented above . . . in response to the government’s
arguments.” Pls.’ Rev. MSJ at 172.
5. Category Five — Biloxi Marshes Exterior
The parties agree the Court granted summary judgment to the government on this
category in its 2021 opinion. See Gov’t’s MSJ at 62; Pls.’ Rev. MSJ at 172.
6. Category Six — Eloi Bay
a. Biloxi and Eugenie’s Category Six Properties
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The government argues “[t]he same evidence and argument discussed above in relation to
Eugenie’s Category One properties apply with equal force to Biloxi and Eugenie’s Category Six
properties.” Gov’t’s MSJ at 62. Plaintiffs respond “[h]ere the government relies on the same
evidence and arguments it presented relative to the Eugenie’s Category One Properties as
applicable to the Biloxi and Eugenie’s Category Six Properties. Therefore, Plaintiffs will rely on
the same evidence and arguments presented above.” Pls.’ Rev. MSJ at 173.
b. Terre Aux Boeufs’s Category Six Properties
The government first argues “the United States did not make a “mere promise” to
remediate MRGO-caused damage on Terre Aux Boeufs’ Category Six properties.” Gov’t’s MSJ
at 64 (cleaned up). The government notes “Karl Zollinger testified as the Rule 30(b)(6) deponent
for Terre Aux Boeufs” and “stated that he was unaware of any promises, plans or commitments
on behalf of the Corps to conduct any environmental restoration work on any of the Terre Aux
Boeufs property.” Gov’t’s MSJ at 64 (citation omitted). Plaintiffs argue in response “[t]he
government’s arguments are all irrelevant.” Pls.’ Rev. MSJ at 173. Plaintiffs assert “Mr.
Zollinger is also a member of the boards directors of Biloxi Marsh Lands Corporation and Lake
Eugenie Land and Development, Inc.” and “his father was also a member of the board of
directors of Biloxi and Lake Eugenie.” Id. Plaintiffs argue Zollinger’s father “attended all the
board meetings of those two companies (which is reflected in the minutes of the meetings),
where he became aware of all the information about the Corps’ plans to repair the MRGO that
Mr. Odgen and Mr. Rudolf described in their depositions, and information related to the MRGO
found in the records of those two companies.” Id. According to plaintiffs, “[t]hat information
was imputed to Terre Aux Boeufs through his father and based on his father’s knowledge the
owners of Terre Aux Boeufs did not know when or if their land would be permanently destroyed,
which created justifiable uncertainty and tolled the statute of limitations.” Id.
7. Category Seven — Jean Louis Robin
The government again argues “[t]he same evidence and argument discussed above in
relation to Eugenie’s Category One properties apply with equal force to Biloxi and Eugenie’s
Category Seven properties.” Gov’t’s MSJ at 67. Likewise, according to the government, “[t]he
same evidence and argument discussed above in relation to Terre Aux Boeuf’s Category Six
properties apply with equal force to Terre Aux Boeuf’s Category Seven properties.” Id. at 68. In
response, plaintiffs also rely on “the same evidence and arguments presented above” for
“Eugenie’s Category One Properties” to apply to “Biloxi and Eugenie’s Category Seven
Properties” and for “the Terre Aux Boeufs Category Six properties” to apply to the “Terre Aux
Boeufs Category Seven Properties.” Pls.’ Rev. MSJ at 174.
B. Plaintiffs’ Argument the Government is Liable for Breach of Contract
“In addition to their takings claims, five of the six plaintiffs, Biloxi, Lake Eugenie,
Borgnemouth, Livaudais, and the Vincent Marshlands Plaintiffs, have asserted breach of contract
(or breach of servitudes) claims based on the government’s alleged breach of its contractual
obligation to maintain the channel at the designed 500-foot bottom width and 36-foot depth and
within the limits of the servitudes.” Pls.’ Rev. MSJ at 228. Plaintiffs argue the servitudes
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require the government to prevent the MRGO from expanding beyond the limits of the area
specified in the servitude contracts. Id. Plaintiffs further assert “Louisiana substantive law
applies to the plaintiffs’ breach of servitudes claims” because “[t]he servitudes at issue were
granted in Louisiana, by plaintiffs pursuant to Louisiana law, and involve real or immovable
property located in Louisiana.” Id. at 231. Plaintiffs then contend “[a] well-established rule of
servitude law in Louisiana is that the dominant estate must not ‘aggravate’ the condition of the
servient estate.” Id. at 231. Plaintiffs argue “[t]herefore, in accordance with Louisiana law,
plaintiffs are entitled to recover from the government the cost of restoring the damage to their
properties caused by the government’s breach of the Biloxi MRGO Servitudes, the Lake Eugenie
MRGO Servitudes, the Borgnemouth MRGO Servitudes, the Livaudais MRGO Servitudes and
the Chalmette Meadows MRGO Servitudes as well as the cost of all the lands that eroded and the
cypress trees that were killed.” Pls.’ Rev. MSJ at 233 (citation omitted).
C. The Government’s Argument Plaintiffs’ Contract Claims are Unripe and
Untimely
The government argues the Court should dismiss plaintiffs’ contract claims because: “(a)
the six-year statute of limitations, 28 U.S.C. § 2501, bars them; and (b) the United States and
Plaintiffs are not in privity of contract.” Gov’t’s MSJ at 73. First, the government argues “[a]
breach of contract claim against the United States must be filed within six years of when the
claim first accrues.” Gov’t’s MSJ at 73. Further, the government asserts “[a] breach of contract
claim accrues at the time of breach” and “[a]ccrual of a breach of contract claim may be
suspended until the claimant knew or should have known that the claim existed.” Id. (citations
and quotations omitted). Thus, the government argues “the United States breached that
contractual duty, if at all, no later than February 1988,” the time the Court’s 2021 Order held
plaintiffs’ claims stabilized. Id. at 74. Plaintiffs argue the government’s duty not to “aggravate”
the servient estate is a “continuing” one, so no breach of contract claim accrued until 2009 when
the servitudes allegedly terminated. See Pls.’ Reply at 7. Second, the government argues “if the
Court concludes that Plaintiffs’ breach of contract claims are timely, the Court should dismiss for
lack of jurisdiction because there is no privity of contract between Plaintiffs and the United
States.” Gov’t’s MSJ at 75. Plaintiffs contend privity of contract is present because the
government, “[b]y accepting the assignment of the servitudes, . . . stepped in the shoes of the
Port of New Orleans. Therefore, . . . plaintiffs and the government were parties to conventional
(contractual) servitudes.” Pls.’ Reply at 7. The parties also dispute whether the servitudes
contractually required the government to maintain the original width of the MRGO. See Gov’t’s
MSJ at 80–93; Pls.’ Rev. MSJ at 236–40.
Related to plaintiffs’ sixth cause of action (alleging a Fifth Amendment Taking based on
the government’s use, taking, or intent to take plaintiffs’ property after the termination of
servitudes), the government asserts plaintiffs’ claims are unripe because the servitudes have not
terminated, and, even if they had, “prescriptive rights cannot be obtained against the federal
government.” See Gov’t’s MSJ at 69–70 (citations omitted). Though the government maintains
privity and timeliness resolve any servitude-related claims, the government argues plaintiffs’
sixth cause of action fails anyway because each servitude expressly states it is “perpetual,” and
the government has not “expressly or otherwise renounced these Servitudes.” Id. Plaintiffs
respond, under Louisiana law, “[a] predial servitude[, i.e., a servitude burdening an estate rather
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than a personal servitude specific to a property owner,] is extinguished by nonuse for ten years,”
and the government stopped using the MRGO in 2009, thus the servitudes must necessarily have
extinguished by nonuse in July 2019. Pls.’ Rev. MSJ at 244–45.
IV. Applicable Law
A. Jurisdiction
“The Tucker Act, 28 U.S.C. § 1491 (a)(1), provides the Court of Federal Claims with
jurisdiction over takings claims brought against the United States.” Casitas Mun. Water Dist. v.
United States, 708 F.3d 1340, 1359 (Fed. Cir. 2013) (citation omitted). “Every claim of which
the United States Court of Federal Claims has jurisdiction shall be barred unless the petition
thereon is filed within six years after such claim first accrues.” 28 U.S.C. § 2501 (2012). “[T]he
Supreme Court made clear the requirements of 28 U.S.C. § 2501 are unwaivable, ‘absolute,’ and
correctly considered sua sponte.” Etchegoinberry v. United States, 132 F.4th 1374 (Fed. Cir.
2025) (citing John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133–34 (2008)).
Pursuant to Rule 12(h)(3) of the Rules of the United States Court of Federal Claims (“RCFC”),
“[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.” RCFC 12(h)(3). “Because the statute of limitations is jurisdictional, the
plaintiff bears the burden of proof.” Petro-Hunt, L.L.C. v. United States, 862 F.3d 1370, 1378
(Fed. Cir. 2017).
B. Summary Judgment Standard
The Court may grant a motion for summary judgment “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” RCFC 56(a). A court shall not grant summary judgment if “the dispute about a material
fact is ‘genuine.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is
considered genuine if the “evidence is such that a reasonable [fact finder] could return a verdict
for the nonmoving party.” Id. “In determining whether there is a genuine issue of material fact,
the trial court must assume that the evidence presented by the non-movant is credible and draw
all justifiable inferences therefrom in the non-movant’s favor.” Monon Corp. v. Stoughton
Trailers, Inc., 239 F.3d 1253, 1257 (Fed. Cir. 2001) (citing Anderson, 477 U.S. at 255). “Only
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Id. (citing Anderson, 477 U.S. at 248).
“Contract interpretation is a matter of law and thus amenable to decision on summary judgment.”
Gov’t Sys. Advisors, Inc. v. United States, 847 F.2d 811, 812 n.1 (Fed. Cir. 1988); see, e.g., NVT
Techs. Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004); H.B. Mac, Inc. v. United
States, 153 F.3d 1338, 1345 (Fed. Cir. 1998).
The party seeking summary judgment bears the burden of establishing the absence of any
genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When the
moving party has met this burden, the burden shifts to the non-movant who must present
sufficient evidence to show a dispute over a material fact allowing a reasonable factfinder to rule
in its favor. Anderson, 477 U.S. at 256–57. The evidence does not need to be admissible, but
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mere denials, conclusory statements, or evidence not significantly probative will not defeat
summary judgement. Celotex, 477 U.S. at 322–24.
C. Stabilization Doctrine and Justifiable Uncertainty
The Federal Circuit applies the Supreme Court’s holdings in Dickinson and Dow to stay
the accrual of a takings claim when government promises or actions to mitigate the damages
stemming from the claim create justifiable uncertainty regarding when a landowner’s claim has
accrued. Dickinson and Dow established the “stabilization doctrine,” which “discourage[s] a
strict application of accrual principles in unique cases involving Fifth Amendment takings by
continuous physical processes.” See Applegate v. United States, 25 F.3d 1579, 1582 (Fed. Cir.
1994) (citing United States v. Dickinson, 331 U.S. 745 (1947); United States v. Dow, 357 U.S. 17
(1958)). In Applegate, the Federal Circuit applied stabilization doctrine to a gradual taking of
land from “landowners [who] remain justifiably uncertain about the permanency of the erosion
and taking.” 25 F.3d at 1583. In that case, the Corps constructed a deep-water harbor, and, “[t]o
maintain the channel’s entrance, the Corps constructed two jetties” on each side of the harbor,
which interrupted the “natural southerly littoral flow of sand [which] replenished 41 miles of
white sandy beaches” and caused “the shoreline north of the harbor to accrete and the shoreline
to the south to recede.” Id. at 1580. In 1962, “the River and Harbor Act . . . authorized over five
million dollars for the construction of a sand transfer plant . . . [and] the Senate Public Works
Committee and the Florida Department of Natural Resources approved a Corps plan to restore
the beaches in 1968.” Id. The plans were delayed, and as of the date of the Federal Circuit’s
opinion, the plant was not yet built. Id.
In 1992, “landowners filed a complaint in the Court of Federal Claims asking for
damages under the Fifth Amendment and for an injunctive order requiring the Corps to build the
transfer plant.” Id. at 1581. The United States moved to dismiss, alleging the Court of Federal
Claims lacked jurisdiction to provide injunctive relief and alleging the motion was untimely. Id.
This court granted the government’s motion, and the landowners appealed the statute of
limitations bar. Id. On appeal, the Federal Circuit addressed the issue of how the stabilization
doctrine applied to the government’s promised mitigation efforts to restore plaintiffs’ land. Id. at
1582. The court explained, “[t]he gradual character of the natural erosion process set in motion
by the Corps, compounded by the Government’s promises of a sand transfer plant, have indeed
made accrual of the landowners claim uncertain.” Id. at 1582. “[T]he almost imperceptible
physical process has delayed detection of the full extent of destruction—a necessary precondition
of striking a final account.” Id. The court held, “due to both the very gradual nature of this
particular physical process and the Corps’ promises to restore the littoral flow of sand, this taking
situation had not stabilized by 1986—six years before the landowners filed suit . . . [and] [t]he
statute of limitations does not bar this action.” Id. at 1583; see also Prakhin v. United States, 131
Fed. Cl. 706, 714 (2017) (holding the government’s repeated promises to mitigate conditions
rendered the permanency of the taking uncertain and plaintiff is not barred by the six-year
limitations period). Therefore, “precisely because of the Government’s promises to build a sand
transfer plant, the landowners remain[ed] justifiably uncertain about the permanency of the
erosion and the taking,” and the statute of limitations did not bar their claims. Applegate, 25
F.3d at 1583 (emphasis added). In other words, justifiable uncertainty on the part of the
landowners “stayed the accrual” of plaintiffs’ takings claims. Id.
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The Federal Circuit further examined the effect of justifiable uncertainty on the statute of
limitations for takings claims in Banks v. United States. 314 F.3d 1304 (Fed. Cir. 2003). In
Banks, the court explained the “Corps completed the construction of the St. Joseph harbor jetties
in 1903[,] [and] [b]etween 1950 and 1989, the Corps installed sandtight steel sheet piling to the
jetties.” Id. at 1306. Installation of the harbor jetties and steel sheet pilings “significantly
increased the annual rate of shoreline erosion” along the eastern shoreline of Lake Michigan. Id.
The Corps attempted to mitigate the damages for more “than fifteen years of beach nourishment
with fine sand.” Id. at 1307. “When the Corps determined that fine sand did not fulfill the role
of coarser sediment . . . the Corps deposited coarse material on the . . . shoreline on five different
occasions between 1986 and 1993 . . . [and] [t]he mitigation efforts were expanded to placing
barge-loads of large rocks into the lake in 1995.” Id. Plaintiffs filed suit in the Court of Federal
Claims alleging takings claims after a “2000 FY–1999 Annual Report . . . emphasized the
irreversible and potentially permanent nature of the erosion.” Id. The government moved to
dismiss for lack of jurisdiction due to the timeliness of plaintiffs’ claims. Id. This court granted
the government’s motion, finding the claims “arose no later than 1989—the date the Corps
completed the steel sheet piling of the jetties.” Id.
On appeal, the Federal Circuit in Banks noted the “question is whether the ‘predictability
[and permanence] of the extent of damage to the [plaintiffs’] land’ was made justifiably
uncertain by the Corps’ mitigation efforts.” Id. at 1309 (citing Applegate, 25 F.3d at 1583).
Applying this standard, the court held “even greater uncertainty was created by the Corps’
mitigation plan . . . [because] the Corps in this case actually performed its mitigation activities
for several years before the filing of this action.” Id. at 1309–10. The Federal Circuit made clear
justifiable uncertainty does not require “the presence of a legally binding promise or duty or a
matter requiring a congressional appropriation.” Id. at 1309. “Because the Court of Federal
Claims misapplied the standard for claim accrual under Applegate, and because plaintiffs
remained uncertain as to the permanent nature of the taking until the Corps reported that the
erosion was permanent and irreversible,” the Federal Circuit “conclude[d] that the claims were
not time barred.” Id. at 1310.
In Boling v. United States, the Federal Circuit applied the Supreme Court’s limitation of
Dickinson as expressed in Dow to eroded lands along a coastal waterway. 220 F.3d at 1370–81.
The property owners in Boling brought suit alleging takings claims from erosion caused by a
government-dredged channel. Id. at 1368–69. The Court of Federal Claims dismissed some of
the landowners’ claims as time barred, holding “a takings claim accrued once any portion of the
parcel at issue had suffered erosion damage.” Id. at 1369. On appeal, the Federal Circuit applied
the stabilization doctrine, explaining “stabilization . . . in Dickinson is not deferred until the
progressive environmental damage stops, but occurs when the environmental forces have
substantially and permanently invaded the private property such that the permanent nature of the
taking is evident and the extent of the damage is reasonably foreseeable.” Id. at 1371 (emphasis
added). Plaintiffs in Boling sought in the alternative to extend the time for filing their claims by
relying on the doctrine of justifiable uncertainty, arguing authorized government plans to protect
their property, which the government later rescinded, caused them to be justifiably uncertain
about the extent of their taking. Id. at 1372. The Federal Circuit rejected this argument and
found plaintiffs were not aware of the government’s alleged mitigation plans until after filing
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suit, and the Corps denied a previous request for erosion protection. Id. The Federal Circuit
therefore remanded the case to the Court of Federal Claims to make factual determinations in the
first instance about when “the permanent nature of the taking was evident such that a land owner
should have known the land suffered erosion,” because “[g]iven the realities of the terrain and
the difficulty of determining the exact boundary of the easement, it was virtually impossible for
the landowner to discern the land had been taken.” Id. at 1372–73.
To fall within the doctrine the Federal Circuit expressed in Applegate, Banks, and Boling,
mitigation efforts must make landowners “justifiably uncertain” about the predictability and
permanence of the damage caused by the erosion. In cases where no mitigation efforts are
committed to or undertaken, there can be no justifiable uncertainty. See Mildenberger v. United
States, 643 F.3d 938, 947 (Fed. Cir. 2011). In Mildenberger, landowners sued the United States
in the Court of Federal Claims “seeking compensation for the alleged taking of their riparian and
upland property rights” stemming from government discharges of polluted water from a lake. Id.
at 941. The government filed a motion to dismiss plaintiffs’ claims, arguing they were barred
under the statute of limitations, and this court granted the government’s motion to dismiss under
the doctrines of stabilization and justifiable uncertainty. Id. On appeal, the Federal Circuit
explained the release of polluted water had occurred “for almost eighty years and the
environmental effects have been evident since the 1950.” Id. at 946. Further, in the “1990’s,
some Claimants formed the St. Lucie Initiative, Inc. to restore the health and productivity” of the
river and produced a newsletter in 1996 “summarizing the history of the harm.” Id. The Federal
Circuit therefore held the “environmental damage was foreseeable and manifested prior” to
2000. Id. Addressing the mitigation doctrine in Applegate and Banks, the Federal Circuit stated
“[t]here is no justifiable uncertainty due to the Corps’ promises before the 1990s because the
Corps neither undertook nor committed itself to any mitigation activities.” Id. at 947. An
internal Corps memorandum addressing “one official’s views regarding a possible method of
addressing the Corps’ public relations problem” and the “Corps’ consideration of potential
projects to improve management of the waterways” were not, by themselves, sufficient to
commit the Corps to any mitigation activities. Id. at 947–48. Plaintiffs’ claims had therefore
stabilized more than six years before plaintiffs brought suit, barring them under the statute of
limitations. Id.
V. Impact of Ecthgoinberry on Justifiable Uncertainty and the Status of Plaintiffs’
Claims in View of Binding Precedent and the Court’s 2021 Summary Judgment
Order
Most recently, the Federal Circuit applied the doctrine of justifiable uncertainty in
Etchegoinberry v. United States, 132 F.4th 1374 (Fed. Cir. 2025). There, appellants’ land was
regularly flooded by irrigation waters, and the United States had committed itself to constructing
drainage for the area affected. See id. at 1377. Drainage was only ever partially constructed, and
by 1986 no drainage was performed at all. See id. Appellants sued and alleged “because the
United States did not provide the drainage it was obligated to provide, ‘the combined effect of
the rising water table and the accumulation of saline groundwater beneath and upon their
properties has deprived [Appellants] of the benefit of the productive use of their farmlands.’” Id.
(alteration in original) (citation omitted). The Federal Circuit held the stabilization doctrine did
not apply to the claims at all because “Appellants here irrigated their land for over forty years
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knowing the United States had not provided any drainage” and “the provision of irrigation water
was regular, consistent, and recurring, and not a slow, gradual, physical process that may (or may
not) eventually lead to a taking.” Id. at 1379–80 (footnote, citation, and internal quotations
omitted). The Federal Circuit explained, even if the stabilization doctrine did apply to the
claims, “[i]t is Appellants’ burden to show they were justifiably uncertain about the permanence
of the taking until at least [six years prior to filing suit].” Id. at 1380 (citing Diversified Group
Inc. v. United States, 841 F.3d 975, 980 (Fed. Cir. 2016)). The Federal Circuit explained
justifiable uncertainty could not rescue appellants’ claims because “[w]hile the United States
may have conducted studies and issued reports regarding the feasibility of potential drainage
construction, actions taken by the United States should have alerted Appellants as to the
permanence of their claim before [the date on which appellants argue their claims accrued.]” Id.
at 1381. As an example of such “actions taken by the United States,” the Federal Circuit noted,
“[i]n the early 1990s, the United States publicly ‘denied that any statutory duty exists to provide
drainage.’” Id. Accordingly, the Federal Circuit held appellants’ claims were time-barred under
the six-year statute of limitations. See id.
At oral argument, the Court engaged in a lengthy colloquy with the parties regarding how
Etchegoinberry impacts the Court’s analysis of justifiable uncertainty in this case. The
government agreed Etchegoinberry “doesn’t change the law” related to justifiable uncertainty, it
simply “gives a higher resolution and provides Federal Circuit precedent on . . . what types of
commitments are not sufficient for justifiable uncertainty purposes.” 4 Nov. 2025 Oral
Argument Transcript (“Tr.”) at 252:20–25, ECF No. 286. Although the government expressed
“there might be some tension between” Etchegoinberry and prior holdings in cases like
Applegate, Banks, and Mildenberger, Tr. at 34:5–9, it agreed Etchegoinberry “did not overrule
Applegate,” Tr. at 32:16–19. Likewise, plaintiffs made clear at oral argument they do not
believe Etchegoinberry “has anything to do really in terms of changing the standard that had
been announced by the [Federal Circuit] in the Applegate and Banks decision[s].” Tr. at
13:21–25. Further, the Federal Circuit’s discussion of justifiable uncertainty in Etchegoinberry
is only dicta. See Nat’l Am. Ins. Co. v. United States, 498 F.3d 1301, 1306 (Fed. Cir. 2007)
(“Dicta, as defined by this court, are statements made by a court that are unnecessary to the
decision in the case, and therefore, not precedential (although they may be considered
persuasive).” (cleaned up)). In Etchegoinberry, the Federal Circuit explained the flooding of the
appellants’ land was a “regular, consistent, and recurring” event instead of a “slow, gradual,
physical process that may (or may not) eventually lead to a taking.” See 132 F.4th at 1379–80
(citation omitted). The Federal Circuit held the doctrine of stabilization did not apply at all;
therefore its analysis of justifiable uncertainty “even if the stabilization doctrine did apply,” id. at
1380, was “unnecessary to the decision in the case.” See Nat’l Am. Ins. Co., 498 F.3d at 1306
(citation omitted). Accordingly, with the agreement of the parties and no intervening change in
the applicable law, the Court will apply the same standard.
In its 2021 Order, the Court analyzed plaintiffs’ takings claims according to seven
separate land categories. See Biloxi Marsh Lands Corp. v. United States, 152 Fed. Cl. 254, 310
(2021). For category five, Biloxi Marshes Exterior, the Court held “landowners in Category Five
could only have been justifiably uncertain until as late as 1996.” Id. at 300. Accordingly, the
Court granted the government’s motion for summary judgment as to category five because
plaintiff’s 2012 complaint could not have come within the jurisdictional statute of limitations.
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See id. at 310. As for the remaining categories, the Court held it “cannot definitively say
whether or not the government’s actions created justifiable uncertainty as to the permanency of
the alleged government taking.” Id. at 312. The Court also stated “the stabilization doctrine
started the statute of limitations on plaintiffs’ claims during time ranges varying by category, but
in each case no later than 1988.” Id. at 313. The Court explained “[f]or categories One, Two,
Three, Four, Six, and Seven of land, plaintiffs have been able to establish justifiable uncertainty
may toll the statute of limitations.” Id. at 312.
Because the Court referenced the potential for “justifiable uncertainty” to “toll” the
statute of limitations in 2021, id., the Court next clarifies its holding in view of stabilization
doctrine as an accrual principle. Stabilization doctrine (and any justifiable uncertainty analysis
impacting claim stabilization) relates to when plaintiffs’ claims accrue, not to whether the statute
of limitations was tolled. See Boling v. United States, 220 F.3d 1365, 1371 (Fed. Cir. 2000)
(“Thus, while Dickinson and its progeny recognize that takings by gradual processes present
special difficulties, these cases represent an application of general accrual principles, rather than
a broad exception to them.” (citation omitted)). As the Supreme Court established in 2008, the
statute of limitations for plaintiffs’ claims cannot be tolled. See John R. Sand & Gravel Co. v.
United States, 552 U.S. 130, 136 (2008) (noting this court’s “statute’s limitations period [is]
jurisdictional and not susceptible to equitable tolling” (cleaned up)). For this reason, justifiable
uncertainty does not “toll” the statute of limitations after a takings claim stabilizes, but instead
impacts the date of stabilization itself by preventing a landowner from ascertaining whether a
taking is permanent and delaying accrual of the claim. See Applegate v. United States, 25 F.3d
1579, 1582–83 (Fed. Cir. 1994) (“Here again, uncertainty has stayed accrual of the claim[,
because t]he Government’s promises to restore the littoral flow destroyed any predictability of
the extent of damage to the land.” (emphasis added)); Mildenberger v. United States, 643 F.3d
938, 947 (Fed. Cir. 2011) (“the Government’s promises to mitigate damages caused by a
continuous physical process delays accrual of a takings claim when the claimant demonstrates
that the predictability and permanence of the extent of the damage to the claimant’s land was
made justifiably uncertain by the Corps’ mitigation efforts” (cleaned up)); see also Biloxi, 152
Fed. Cl. at 312 (“the statute of limitations on each claim ran until 1994 or earlier, barring
justifiable uncertainty” (citing Applegate, 25 F.3d at 1583)).
While the Court’s prior findings in 2021 are now clarified regarding how stabilization
doctrine works, see Biloxi, 152 Fed. Cl. at 312–13, the proper framing of stabilization doctrine as
an accrual principle does not change any part of the 2021 summary judgment outcome. In its
2021 decision, the Court decided claim stabilization without deciding justifiable uncertainty
because the Court lacked sufficient evidence for a justifiable uncertainty analysis. See id. at 313
(“the Court cannot definitively say whether or not the government’s actions created justifiable
uncertainty as to the permanency of the alleged government taking”). For this reason, although
the Court stated “the stabilization doctrine started the statute of limitations on plaintiffs’ claims
during time ranges varying by category, but in each case no later than 1988,” id., a more accurate
statement would read: “the stabilization doctrine [would have] started the statute of limitations
on plaintiffs’ claims during time ranges varying by category, but in each case no later than 1988
[in the absence of a showing of justifiable uncertainty],” see id.; see also Applegate, 25 F.3d at
1582–83 (“Here again, uncertainty has stayed accrual of the claim[, because t]he Government’s
promises to restore the littoral flow destroyed any predictability of the extent of damage to the
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land.” (emphasis added)). While stabilization of claims in 1988 would have foreclosed
plaintiffs’ claims in 2012 under the statute of limitations, the Court properly declined to make
such a holding, because it lacked the necessary evidence to decide justifiable uncertainty. See
Biloxi, 152 Fed. Cl. at 313. While the Court noted justifiable uncertainty may toll the statute of
limitations after plaintiffs’ claims accrued in 1988, a more precise holding would have noted
justifiable uncertainty may have delayed the accrual of plaintiffs’ claims beyond 1988. See
Applegate, 25 F.3d at 1582–83 (“Here again, uncertainty has stayed accrual of the claim[,
because t]he Government’s promises to restore the littoral flow destroyed any predictability of
the extent of damage to the land.” (emphasis added)); see also Biloxi, 152 Fed. Cl. at 312 (“the
statute of limitations on each claim ran until 1994 or earlier, barring justifiable uncertainty”
(citing Applegate, 25 F.3d at 1583)). In 2021 the Court found plaintiffs’ claims survived
summary judgment because “plaintiffs have shown proposed or completed projects which [may
have] left landowners justifiably uncertain as to the permanency of the alleged taking,” but
further noted, “examining the totality of the government’s actions . . . , the Court cannot
definitively say whether or not the government’s actions created justifiable uncertainty.” Biloxi,
152 Fed. Cl. at 311–12. The Court added, even if the government’s actions could create
justifiable uncertainty, plaintiffs must still establish they had “actual knowledge of enough of the
proposed and completed mitigation projects to be justifiably uncertain as to the permanency of
the alleged taking.” See id. at 312 (citing Applegate, 25 F.3d at 1583).
In short, in 2021 the Court identified three claim accrual issues left for resolution. First:
in the absence of justifiable uncertainty, did plaintiffs’ claims stabilize earlier than the 1988
reconnaissance report? See id. at 312 (“stabilization of each of plaintiffs’ claims occurred at
some point in a range of time starting in the late 1970s or early 1980s and ending in 1988. . . .
This in turn means the statute of limitations on each claim ran until 1994 or earlier, barring
justifiable uncertainty.”). Second: could the totality of government mitigation actions form a
sufficient objective basis for justifiable uncertainty? See id. (“examining the totality of the
government’s actions in the form of previously completed projects and numerous studies,
reports, legislation, and funding appropriated for future projects in the light most favorable to the
non-moving party, the Court cannot definitively say whether or not the government’s actions
created justifiable uncertainty”). Third: could plaintiff landowners’ actual knowledge of such
government actions form a sufficient subjective basis for justifiable uncertainty? 2 See id. (“At
2
Because the latest date on which stabilization could have occurred in the absence of justifiable uncertainty is the
date of the 1988 reconnaissance report, plaintiffs must demonstrate an objective and subjective basis for justifiable
uncertainty at least as far back as the date of the reconnaissance report—showing uncertainty due to government
action only after the taking became apparent in 1988 would constitute equitable tolling, which does not apply to this
court’s jurisdictional statute of limitations. See, e.g., Boling v. United States, 220 F.3d 1365, 1374 (Fed. Cir. 2000)
(“As a basis for equitable tolling, plaintiffs point to the fluctuations of the Corps’ policy regarding erosion along the
waterway and the fluctuating status of the legal claim that they were attempting to assert.”); see also John R. Sand &
Gravel Co. v. United States, 552 U.S. 130, 136 (2008) (noting this court’s “statute’s limitations period [is]
jurisdictional and not susceptible to equitable tolling” (cleaned up)). It remains an open question as to whether the
1988 reconnaissance report itself could serve as a source of justifiable uncertainty as part of “the totality of the
government’s actions in the form of previously completed projects and numerous studies, reports, legislation, and
funding appropriated for future projects.” See Biloxi Marsh Lands Corp. v. United States, 152 Fed. Cl. 254, 312
(2021). Of course, the government could establish plaintiffs’ claims stabilized (barring justifiable uncertainty)
earlier than the 1988 reconnaissance report, in which case plaintiffs would need to present evidence of justifiable
uncertainty as far back as this earlier date. See Section IX, infra. Even then, plaintiffs must still demonstrate
subjective knowledge of government promises or projects to remediate the damage caused by the MRGO that, as an
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any future trial the Court will have to closely examine the specific knowledge landowners had
related to the proposed and completed mitigation actions contained in the record and whether
these actions resulted in justifiable uncertainty on the part of the landowners”).
“The ultimate question in a justifiable uncertainty analysis is whether the landowners did
or did not know when or if their land would be permanently destroyed.” Biloxi, 152 Fed. Cl. at
312 (emphasis in original) (cleaned up). At summary judgment in 2021, the Court explained,
“[a]t any future trial the Court will have to closely examine the specific knowledge landowners
had related to the proposed and completed mitigation actions contained in the record and whether
these actions resulted in justifiable uncertainty on the part of the landowners as to the
permanency of the government’s taking.” Id. at 312. Later, on reconsideration, the Court further
explained: “[f]or purposes of statute of limitations accrual, determining justifiable uncertainty is
a two-part inquiry: (1) whether a landowner’s subjective knowledge of the government’s
promises or actions caused the landowner to be uncertain about the taking’s permanence; and (2)
whether government promises or actions caused the landowner an objectively reasonable
uncertainty of the taking’s permanence.” Biloxi Marsh Lands Corp. v. United States, 156 Fed.
Cl. 301, 319 (2021). Compliance with the Tucker Act’s six-year statute of limitations is a
jurisdictional prerequisite for claims in the Court of Federal Claims. See John R. Sand, 552 U.S.
at 133–34 (“The Court has often read the time limits of these statutes as more absolute, say, as
requiring a court to decide a timeliness question despite a waiver, or as forbidding a court to
consider whether certain equitable considerations warrant extending a limitations
period. . . . This Court has long interpreted the court of claims limitations statute as setting forth
this second, more absolute, kind of limitations period.” (citations omitted)). Accordingly, to
decide the timeliness of plaintiffs’ taking claims at summary judgment, the Court must determine
whether the undisputed facts establish justifiable uncertainty delayed the accrual of plaintiffs’
claims to within six years of filing suit. Applegate, 25 F.3d at 1581 (“Actions in the Court of
Federal Claims must be filed within six years of the claim’s accrual. Therefore, this court’s
review of the trial court’s action depends upon when this alleged taking accrued.” (citing 28
U.S.C. § 2501 (1988))), 1582–83 (justifiable uncertainty standard), 1583 (“Here again,
uncertainty has stayed accrual of the claim.”); RCFC 56(a) (summary judgment standard).
VI. Summary of Undisputed Facts and the Parties’ Primary Pieces of Evidence
Before proceeding to legal analysis, the Court first briefly summarizes the most salient
pieces of evidence in the Joint Compendium.
objective matter, reasonably created uncertainty as to the permanence of the damage to their land—plaintiffs must
then demonstrate this subjective knowledge and objectively reasonable uncertainty was continuously present from at
or before the moment they knew or should have known of the permanent damage to their property until fewer than
six years before the date of filing. See, e.g., id. at 300 (“Even assuming the proposed freshwater diversion resulted
in justifiable uncertainty until Louisiana expressed its opposition to the project in 1996, there is at least an eleven-
year gap in plaintiffs’ timeline of the proposed, but explicitly rejected, project. . . . It is not enough the project
remained ‘authorized’ by the 1988 WRDA, in the face of the state’s opposition and no evidence in the record of
plans to complete the project after 1996, for landowners in Category Five to have remained justifiably uncertain as
to the permanency of the alleged taking during at least this 11-year period.” (citing Banks v. United States, 314 F.3d
1304, 1309 (Fed. Cir. 2003))).
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Two maps are particularly helpful in delineating ownership parcels and work completed.
Document 296 of the Joint Compendium is a map dated October 1991, “made for Board of
Commissioners of the Port of New Orleans,” which show a highlighted area along the north
shore of the MRGO with arrows designating work done labeled “overbank cross-section surveys
areas of work.” JC-296. The map shows the ownership parcels along the MRGO from “miles
48 to 58,” with the highlighted work area sitting in the middle of this range. Id. Document 477
is a regional map of the area of the MRGO encompassing the properties owned by plaintiffs,
labeled “Beneficial Use Through MRGO O&M Dredging Miles 60 to 20.” JC-477. The map
provides color-coded outlines of each plaintiffs’ property along the length of the MRGO and
includes labels for work done running into the 1990s and early 2000s as highlighted white areas.
See id.
The Joint Compendium also includes several evaluations and maps the parties used in
their briefs and at oral argument—of particular interest are Documents 442 and 576. Document
442 of the Joint Compendium is a September 1991 evaluation prepared by Coastal
Environments, Inc. evaluating a New Orleans District, USACE proposal for “bank stabilization
and dredge material disposal along the [MRGO] outlet canal.” JC-442 at 2. The evaluation,
submitted to the St. Bernard Parish Police Jury and the St. Bernard Parish Costal Advisory
Committee, explains the USACE presented a preliminary plan for partial bank stabilization and
maintenance dredge material disposal at a meeting held at the Department of Natural Resources
on 3 September 1991; “representatives of the St. Bernard Parish Police Jury, and interested
landowners and members of the general public” attended the meeting. See id. The evaluation
also references “earlier meetings concerning the matter.” Id. The document evaluates USACE’s
preliminary plan to construct a dike between mile 51.1 and mile 54.6 along the MRGO, followed
by “disposal of dredge material in two large marsh areas lying between the [MRGO] and Lake
Borgne.” Id. at 2–3. The evaluation notes “it would be cost prohibitive to restore the eroded
bank,” but construction of the 3.5 mile dike would cost approximately $3.5 million. Id. at 2–3.
While the evaluation criticizes the plan because it “provides no provisions for reducing erosion
along the lake shore” and “does not provide for future maintenance dredging,” it concludes
“[USACE]’s proposal for the foreshore dike is generally acceptable.” Id. at 3–4. Document 576
is a regional map showing projects between Mile 20 and Mile 60 along the MRGO, but does not
include a date for these projects. See JC-576. The map shows significant lengths of completed
foreshore protection and dredged materials retention projects along the north bank of the MRGO.
See id. Between miles 45 and 60 are significant completed hurricane protection foreshore
protection projects, and there are scheduled foreshore protection projects between miles 30 and
25 on the south bank of the MRGO. See id.
The parties also included letters exchanged between plaintiffs and various individuals.
Document 443 of the Joint Compendium is a 19 November 1991 letter from the Port of New
Orleans to the Borgnemouth Realty Company requesting a “right of entry, with ingress and
egress, to [an] area located south of the MRGO, for the performance of hydrographic surveys.”
JC-443 at 1. The letter specifies “surveys shall consist of taking soundings along the lengths of
the bayous and canals, in midchannel, and taking cross-sections (depth observations at right
angles to the courses of the waterways) at 500 or 1000 foot intervals.” Id. The letter then
requests the recipient “grant . . . approval to this request for a right of entry by having a properly
authorized corporate officer sign the enclosed duplicate original of this letter . . . and return[]
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said duplicate original.” Id. at 1–2. The document includes the signature of the President of
Borgnemouth Realty Company on 26 November 1991 in the space provided to grant the right of
way request. See id. at 2. The letter states the hydrographic surveys will be performed “in
connection with the upcoming bank protection project.” See id. at 1. Document 476 is an 11
August 1983 letter from a New Orleans law firm advising the Secretary of Tulane University
regarding the scope of the University’s agreement with USACE to use and access land near the
MRGO. See JC-476 at 1. The letter states the firm reviewed another letter by USACE to the
University which stated USACE’s intent to build a “2400-foot test section of foreshore
protection dikes along the [MRGO],” and the firm then reviewed the agreement to determine
what effect this construction would have on the property. Id. The letter notes “[t]he purpose of
the foreshore protection dike is to prevent erosion along the bank of the waterway, and this
method is being tested in order to determine whether it will be effective.” Id. The letter
ultimately states “the Corps has the right under the terms of our agreement to take this action,
and, rather than being detrimental to the owners, I believe it will enure to our advantage to keep
the waterway from eroding and keep us from losing more of the land.” Id. 1–2.
The Joint Compendium also included numerous government reports or notices related to
activities along the MRGO. Document 444 of the Joint Compendium is a public notice by the
Department of the Army on 17 October 1991 regarding a proposal to “construct bank
stabilization” and to “designate additional disposal areas for shoal material removed during
routine maintenance dredging of the waterway” along the MRGO. JC-444 at 1. The notice
explains the project will involve construction of “earthen retention dikes” along a multiple-mile
section of the MRGO, with designation of disposal areas to be made along the shore-side of the
dike and in nearby open-water areas. See id. at 2. The notice further states all dredge material
which is deposited as part of this project will “be placed into the disposal areas in a manner
conducive to wetland nourishment and/or wetland development.” Id. Document 1067 is a
“finding of no significant impact” document prepared in January 1985 by USACE assessing the
environmental impact of a proposed project on the south bank of the MRGO to “plac[e] 30-inch
graded stone on a 9-inch shell bedding to provide foreshore protection” and potentially dredge
“an adjacent flotation channel.” JC-1067 at 1. The document provides an assessment of the
project’s scope and its likely effect on the surrounding environment, with reference to “numerous
foreshore protection test sections” constructed “[d]uring the fall of 1982 and the winter of 1983”
“along the south bank of the MR-GO.” Id. at 2. The assessment explains the project is
“designed to control foreshore erosion on the south bank of the MR-GO,” by placing stone and a
shell bedding along an area of the south bank, along with additional stone and shell for
maintenance purposes in the future. Id. at 2–3. The assessment also notes “[t]here is a
possibility that a flotation channel might be dredged adjacent to the work area” and, if so, “the
dredged material would be deposited on the MR-GO side of the flotation channel.” Id. at 3.
Included in the assessment are maps of the proposed activity occurring along a length of the
MRGO. See id. at 5–6. The assessment ultimately determines “the action would have no
significant impact upon the human environment[, t]herefore no Environmental Impact Statement
will be prepared.” Id. at 1. Document 32 of the Joint Compendium is a 1995 detailed report
prepared by the Louisiana Department of Natural Resources concerning the progress and
operations of the Violet Siphon project. JC-32 at 1, 3. The report explains “[t]he Violet Siphon
was constructed by St. Bernard Parish” “in December 1979,” “operated until April 1980,” and
“renovated in May 1992” “to introduce fresh water from the Mississippi River into the
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12,400-acre deteriorating marsh” located near the MRGO. Id. at 1. The report finds “bottom
salinities at stations 2 and 3 (closest to the siphon, respectively) decreased with the opening of
the siphon, but substantially increased . . . when the siphon was closed.” Id. at 2. At other
stations farther from the Siphon, the report shows “it appears that the siphon has minimal
influence on salinities at [stations 4, 5, 6, and 8].” Id. The report also confirms the Violet
Siphon was “inactive” at the time of the report due to decreased water levels in the Mississippi
River. Id. Document 301 is a USACE draft environmental assessment and finding of no
significant impact published in December 2002 assessing the “the potential impacts of
designating additional disposal areas, constructing bank stabilization and retention dikes, and
excavating flotation channels between Mile 66.0 and Mile 49.0 of the . . . MR-GO.” JC-301 at 3.
The assessment notes “[w]idespread public support . . . for the protection of environmental
resources within the Lake Borgne/MR-GO region, with special emphasis on averting further loss
or degradation of wetland habitats.” Id. at 5. The assessment also references environmental
impact assessments from 1976 (finding of no significant impact), 1991 (finding of no significant
impact), 1994 (finding of no significant impact), 1996 (finding of no significant impact), 1997
(finding of no significant impact), 1998 (finding of no significant impact), 1999 (finding of no
significant impact), and 2001 (finding of no significant impact). Id. at 4–5. The 2002 draft
assessment describes a project involving “the beneficial use of dredged material to aid the
restoration of marsh areas” and “[a]dditional disposal areas would be designated for the
beneficial use of dredged material removed during routine maintenance dredging of the MR-
GO.” Id. at 5. “Closures and bank stabilization/retention dikes would be constructed at the
proposed disposal areas[] as needed” and material “would be utilized to construct closures and
dikes, stabilize sections of the MR-GO banks against erosion, and prevent dredged material from
re-entering the navigational channel and adjacent waterways.” Id. The assessment also notes,
under a “no-action alternative,” “dredged material would be placed in existing upland confined
disposal facilities located on the south bank of the MR-GO” and “[b]ank edge and marsh habitat
within the proposed disposal areas would continue to erode.” Id. at 7.
Finally, both parties relied heavily on depositions of various individuals and
representatives of the plaintiffs and the government. Document 593 of the Joint Compendium is
a transcript of a 2016 deposition of Edmond Russo. See JC-593. Mr. Russo worked as an
“engineer for preparation of plans and specifications for channel maintenance dredging” with the
USACE in the New Orleans District from November of 1992 to August 2005. Id. at
11:23–12:11, 23:22–24. Mr. Russo testified he personally had conversations with various
landowners, including Mr. Livaudais, after he began working in 1998, in which he discussed the
possibility of depositing dredged material onto their lands and discussed the locations where
landowners thought their land could benefit from dredge material. See id. at 60:25–65:10. Mr.
Russo noted he would, while working with the USACE in New Orleans, “correspond with, or
meet with, landowners to discuss their interest in placing materials and would take their
feedback . . . to either place the material in upland areas or for beneficial use.” Id. at 57:5–16.
Mr. Russo also testified he was “reasonably sure” his predecessor, Bob Gunn, communicated
with Mr. Livaudais “[f]or many years” regarding “coordination of real estate to place materials
in the upland disposal areas.” Id. at 67:1–22. Karen Freese, a Rule 30(b)(6) representative for
Vincent Marshlands, testified to her interactions with the government related to projects on the
MRGO surrounding the Vincent properties. See JC-279. Ms. Freese testified she received
communications from USACE seeking right-of-way entry onto the Vincent property to conduct
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surveys in preparation for “projects on the property to help address the loss of wetlands and the
erosion.” Id. at 40:7–24; see also id. at 69:19 –25. She also testified, in response to questioning
about what promises USACE made to conduct specific projects on property near the MRGO, she
“view[ed] the times [USACE] came to us to get rights of access to do projects on the [Vincent]
property as a commitment that those projects were being done.” Id. at 63:8–15. Ms. Freese also
testified regarding her personal notes 3 of a conversation with Bob Gunn, working with the
USACE, which noted Mr. Gunn explained to her USACE would conduct surveys and potentially
get approval for additional “plans to restore land.” See id. at 111:16–112:21. Michael Taylor
also testified as a Rule 30(b)(6) witness for Vincent Marshlands. See JC-46. Mr. Taylor testified
regarding USACE work in the region around the MRGO, and stated he was not aware of any
“rock work, foreshore protection, bank stabilization, [or] anything of that nature” performed on
the Vincent property. Id. at 41:1–7. Moreover, he indicated USACE had not, to his knowledge,
“approached Vincent Marshlands about conducting any type of marsh creation activity” and
there had not been “dredge material from the operation of and maintenance dredging of the
[MRGO] that has been placed within the boundaries of the Vincent Marshlands property.” Id. at
41:10–23.
VII. Whether The Court Can Grant Summary Judgment on Plaintiffs’ Takings Claims
The Court next determines whether the government is entitled to summary judgment on
its argument the Court lacks jurisdiction over plaintiffs’ takings claims because they are
untimely. Following its decision on timeliness, the Court determines whether it can grant
summary judgment as to the government’s liability for a taking. The six-year statute of
limitations established under the Tucker Act “is an explicit condition of the Government’s
waiver of sovereign immunity and, as a matter of law, jurisdictional.” Prakhin v. United States,
131 Fed. Cl. 706, 713 (2017) (citing John R. Sand & Gravel Co. v. United States, 552 U.S. 130,
139 (2008)). “Because the statute of limitations is jurisdictional, the plaintiff bears the burden of
proof.” Petro-Hunt, L.L.C. v. United States, 862 F.3d 1370, 1378 (Fed. Cir. 2017) (citation
omitted). Given each of the plaintiffs must demonstrate knowledge of government mitigation
efforts which justifies uncertainty about the permanency of a taking, see Section V, supra, the
Court will conduct its analysis by individual category and landowner. Plaintiffs and the
government agree the evidence related to the properties in the first three categories is the exact
same as for categories four, six, and seven, with the exception of the Terre Aux Boeufs property
in categories six and seven. See Section III, supra. First, the Court evaluates whether,
reviewing the evidence in the light most favorable to plaintiffs, plaintiffs have shown subjective
knowledge of commitments or actions by the government to repair the damage to their
properties, and whether such knowledge could create objectively reasonable uncertainty
regarding the permanence of the damage to their properties from 1988 to six years before the
filing of suit, see Section V supra, for categories one, two, and three. Second, the Court
conducts the same evaluation for categories four, six, and seven. Third, after the Court evaluates
jurisdiction under the justifiable uncertainty doctrine, the Court determines whether plaintiffs are
entitled to partial summary judgment on the government’s liability for damage to their
properties. For reference, a map of the region demarcating the boundaries of each land category
3
Although Ms. Freese did not personally recall her conversation with Bob Gunn, see JC-279 at 107:5–6, she
testified at her deposition regarding the meaning of her personal handwritten notes of the conversation, see id. at
31:21–32:3; 108:12–16.
- 29 -
is reproduced below:
JC-607 (2012 Feasibility Report) at 2-58 (Category One, Subunit 13, Central Wetlands;
Category Two, Subunit 40, South Lake Borgne; Category Three, Subunit 32, MRGO Spoil
Bank; Category Four, Subunit 7, Biloxi Marshes Interior; Category Six, Subunit 18, Eloi Bay;
Category Seven, Subunit 23, Jean Louis Robin.)
A. Whether the Evidence, Taken in the Light Most Favorable to Plaintiffs,
Establishes Plaintiffs Were Justifiably Uncertain About the Permanence of
the Damage to Their Property in Categories One, Two, and Three
1. Category One – Central Wetlands
The Central Wetlands correspond to geographical “Subunit 13” in the Final Feasibility
Report map, JC-607 at 2-58. Subunit 13 includes the Borgnemouth, Livaudais, Vincent
Marshlands, and Lake Eugenie properties. See Biloxi, Marsh Lands Corp. v. United States, 152
Fed. Cl. 254, 273–74 (2021).
a. Vincent Marshlands
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The government argues plaintiff Vincent Marshlands could not have been justifiably
uncertain as to the permanence of the damage their property because USACE made no “promise
to mitigate MRGO-caused damage on [Vincent’s] property” nor took any “action to mitigate
MRGO-caused damage on [Vincent’s] property.” Gov’t’s Reply at 7. The government chiefly
asserts the depositions of Michael Taylor (Vincent’s Administrative Manager and 30(b)(6)
representative), Karen Freese (an attorney for Vincent), and William Rudolf (one plaintiff-owner
of Vincent Marshlands) showed none of Vincent’s witnesses could identify a USACE promise or
action to repair the damage to Vincent’s land. Id. Plaintiffs argue Taylor did not become a part
of Vincent until too late to testify as to contacts between USACE and the landowners at the
relevant time, and Karen Freese testified “that based on her communications with personnel from
the Port of New Orleans (Lisa Mulready) and the Corps (Mr. Gunn), and the documents she
received from them, she formed an understanding that the Corps intended to repair all the
damage caused by the MRGO.” Pls.’ Rev. MSJ at 140; see also id. at 134–37. As to Mr.
Rudolf, plaintiffs contend his testimony reflects “he relied on various statutes enacted by
Congress in 1990 that required the government to repair the damage caused by the MRGO and
he considered them to be ‘promises’ by the United States.” Id. at 152. Further, plaintiffs point to
numerous letters and project proposals in the record to assert it was objectively reasonable for
the owners of the Vincent property to be uncertain of the permanence of the damage to their
land. See id. at 140, 145.
The parties dispute whether the deposition testimony of Taylor, Freese, and Rudolf
establishes subjective awareness of USACE promises to repair the damage caused by the
MRGO. The government notes Taylor’s testimony indicates he began as Administrative
Manager of Vincent Marshlands as early as 2003 and the “Corps never approached Vincent
about conducting marsh creation activity.” Gov’t’s MSJ at 20. Plaintiffs do not dispute Taylor
could not identify any promise or action by the United States to remediate the damage caused by
the MRGO. See Pls.’ Rev. MSJ at 134–35. Plaintiffs do, however, dispute Taylor could testify
to Vincent contacts with the Corps before 2008 because Vincent was not incorporated until 2008.
Id. at 134–35. Plaintiffs instead point to the deposition of Karen Freese, another 30(b)(6) witness
for Vincent, who testified to “managing the property” as a family relation of some of the
landowners of Vincent’s precursor, “Chalmette Meadows,” as well as representing all Chalmette
Meadows landowners in her capacity as an attorney at Stone Pigman—with both roles spanning
from the early 1990s until 2003, after which her cousin, Will Rudolf, “took over managing the
property.” See JC-279 at 16:16–24:8 (Freese Deposition). Ms. Freese testified, inter alia, to
“getting phone calls from Lisa Mulready about [USACE] wanting to do projects on the property
to help address the loss of wetlands and the erosion” in the early 1990s. JC-279 at 40:15–24;
48:16–24 (Freese Deposition); see also Pls.’ Rev. MSJ at 139–40. Freese also testified there
were “records of . . . the various times that the Corps approached us about doing work to help
restore the property and repair the damage that had been done by the MRGO.” JC-279 at
40:15–24 (Freese Deposition). Freese’s testimony conflicts with Taylor’s testimony insofar as
Taylor was unable to recall any contact between Vincent and the government related to repair
projects, while Freese testified to her contacts with the government which led her to believe
repair projects were coming or ongoing. Moreover, other pieces of evidence in the record
indicate USACE project proposals on the south bank of the MRGO within category one as late as
2002. See, e.g., JC-301 at 1, 6 (Environmental Assessment #354, 23 Dec. 2002) (discussing
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proposed disposal areas within “Mile 66 to Mile 49” of the MRGO and including a map showing
an area of work on the western edge of category one near Vincent’s property). These factual
disputes are “material” because whether the government was actively engaged in projects within
category one property to repair MRGO-caused damage is of critical importance to discern
whether Ms. Freese’s awareness of these projects could demonstrate justifiable uncertainty as to
the permanence of the damage to the Vincent property. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary judgment.”). Drawing all
inferences in favor of plaintiffs, the nature and extent of the work described by Ms. Freese in her
deposition is genuinely disputed, and the nature of this work is material as to whether Vincent
can demonstrate justifiable uncertainty for its category one claims. See Section V, supra.
Accordingly, this genuine dispute of material fact is sufficient to defeat the government’s Motion
for Summary Judgment as to plaintiff Vincent’s category one takings claim. See Section V,
supra; Anderson, 477 U.S. at 248 (describing material fact disputes under the summary judgment
standard).
b. Livaudais and Borgnemouth
The government argues plaintiffs could not have been justifiably uncertain as to the
permanence of the damage to the Livaudais and Borgnemouth properties because USACE made
no “promise to mitigate MRGO-caused damage on [Livaudais and Borgnemouth’s] property”
nor took any “action to mitigate MRGO-caused damage on [Livaudais and Borgnemouth’s]
property.” Gov’t’s Reply at 17. The government specifically asserts Bruce Wallis gave a
30(b)(6) deposition as a representative of Livaudais and Borgnemouth, and “could not recall a
Corps promise or commitment to undertake a project to restore MRGO-caused damage.” Id.
Plaintiffs argue the deposition testimony of Edmund Russo, an employee of USACE and
Operations Manager for the MRGO, confirms dredge material was being deposited in the area of
Livaudais and Borgnemouth’s properties, and documents from the early 1990s confirm
knowledge of ongoing projects and proposals. See Pls.’ Rev. MSJ at 161.
First, plaintiffs assert plaintiffs’ “subjective knowledge of the operation of the Violet
Siphon [project] tolled the statute of limitations with respect to the damage caused by the
MRGO.” Id. at 162. The Violet Siphon program was a freshwater diversion system built by
local interests “with the objective of restoring the project area to a fresher state through
mimicking the former behavior of the Mississippi River by siphoning fresh water into the
marsh.” JC-223 at 1-14 (USACE, New Orleans District, FINAL Environmental Impact
Statement for the Mississippi River-Gulf Outlet (MRGO), Louisiana, and Lake
Borgne — Wetland Creation and Shoreline Protection Project (June 2009) (“2009 USACE
MRGO Environmental Impact Statement”). The Violet Siphon program was initiated in 1978,
built by the St. Bernard Parish in 1979, initially operated until 1983, and brought into operation
again in the 1990s by the Louisiana Department of Natural Resources. See JC-77 at 28–29 (9
Dec. 2016 Expert Rpt. of Day & Shaffer). Plaintiffs agreed the Violet Siphon, if it could
contribute to justifiable uncertainty, could only do so for Livaudais and Borgnemouth’s category
one properties. See Tr. at 129:15–130:2. (“[THE COURT:] [F]or the Violet Siphon, that would
only affect Category one area[, r]ight? [PLAINTIFFS:] Yes, sir. THE COURT] And which
landowner properties? . . . [PLAINTIFFS:] Actually Borgnemouth and Livaudais Company also
- 32 -
owns property there.”).
The government argues plaintiffs cannot rely on the Violet Siphon to establish justifiable
uncertainty, in part because the project was not a federal project. Gov’t’s Reply at 23. At oral
argument, plaintiffs confirmed—and the government did not dispute—the Violet Siphon was
built in 1979 by local interests, but using federal dollars. See Tr. at 130:3–7; see also JC-223 at
1-14 (2009 USACE MRGO Environmental Impact Statement) (“This project has been
reauthorized under the Water Resources Development Act of 2007”). Neither party could offer
caselaw to establish whether this kind of local/federal cooperation can or cannot support the
doctrine of justifiable uncertainty. See Tr. at 130:14–132:3. In the January 2021 Summary
Judgment Order, the Court left open the possibility plaintiffs could rely on the Violet Siphon to
support justifiable uncertainty whether it constituted a federal project or not, in part because the
source of the funding for the project remained unclear. See Biloxi, 152 Fed. Cl. at 278 n.13 (“To
the extent the original operation of the Violet Siphon by ‘local interests’ affects whether
landowners were justifiably uncertain as to the permanency of the alleged takings in Category
One, projects to restore damaged land conducted by entities besides the government may still
leave a landowner justifiably uncertain as to the permanency of any alleged government
taking.”). It is unnecessary for the Court to immediately and finally decide the question of
whether plaintiffs can rely on the Violet Siphon project and, if so, whether its intermittent
operation supports justifiable uncertainty; the Violet Siphon is not the only project or promise on
which plaintiffs rely to support application of justifiable uncertainty. As the Court determines
below, plaintiffs have other evidence of federal promises or mitigation projects sufficient to
create a genuine dispute of material fact as to whether plaintiffs were justifiably uncertain
regarding the permanence of the damage to their land. Accordingly, the Court need not rely on
evidence related to the Violet Siphon project to hold the claim related to Borgnemouth and
Livaudais’ category one property survives the government’s Motion for Summary Judgment.
See Section V, supra.
Second, plaintiffs argue Mr. Russo’s deposition testimony establishes “the property
owners along the MRGO, including Mr. Livaudais, were involved in the process of selecting
locations for placing dredged material on their properties.” Pls.’ Rev. MSJ at 161. Mr. Russo
stated he was “reasonably sure” there had been communications between his predecessor at
USACE, Bob Gunn, and Mr. Livaudais “for many years” prior to 1998 regarding “coordination
of real estate to place materials in the upland disposal areas.” JC-593 at 67:1–22 (Russo
Deposition). Further, Mr. Russo testified he personally would meet with Mr. Livaudais to
coordinate “areas on that map that he was interested in having materials placed into for wetland
creation or restoration.” Id. at 71:4–21. Mr. Russo’s description of communications with Mr.
Livaudais regarding placement of material for the purposes of land repair is supported by
proposals by the USACE in the 1990s to conduct bank stabilization and dredged material
disposal. See, e.g., JC-444 at 2 (USACE Oct. 1991 Public Notice of Proposed Bank Stabilization
Project) (proposing dike construction and dredged material deposition at various sites along the
MRGO and noting “[a]ll dredged material would be placed into the disposal areas in a manner
conducive to wetland nourishment and/or wetland development”). Taken together, this evidence
shows USACE’s commitment to mitigation efforts and consistent communication with the local
property owners to coordinate these efforts.
- 33 -
The government argues the evidence of USACE’s efforts cannot establish justifiable
uncertainty because, at his deposition, Bruce Wallis “could not recall a Corps promise or
commitment to undertake a project to restore MRGO-caused damage to Livaudais and
Borgnemouth’s Category One properties and referred only to an undefined hope of some future
project.” Gov’t’s Reply at 17; see also JC-50 at 14:15–19, 20:7–24, 23:13–16, 30:12–23 (Wallis
Deposition) (Mr. Wallis testifying as 30(b)(6) representative for Livaudais and Borgnemouth, in
his capacity as a past manager and representative of the Livaudais LLC since its formation in
1997 and as board member and president of Borgnemouth since 2009), 18:10–19:5 (Mr. Wallis
explaining the people best situated to testify personally to the 1980s, 1990s, and early 2000s are
deceased, so he and others are “the people closest to them that worked with them . . . And then
other than that, [Mr. Wallis] read as much information as [they] had at the time”). Plaintiffs have
not identified any promise or commitment Mr. Wallis could recall at his deposition. See, e.g.,
JC-50 at 32:7–33:5 (Wallis Deposition). Nevertheless, the conflict between Mr. Russo’s
testimony, which supports regular contact between the USACE and Phillip Livaudais concerning
mitigation efforts, and Mr. Wallis, who could not identify any such efforts or communication,
creates a dispute of material fact. On the one hand, Mr. Livaudais’s contacts with USACE and
the surrounding mitigation efforts could conceivably create uncertainty as to the permanence of
the damage to the relevant property. See Applegate, 25 F.3d at 1584 (“[P]roposals to correct the
damage” done to the land put forward by the government can “further complicate[] ascertaining
the extent and nature of the consequences” of the physical taking enough to trigger the doctrine
of justifiable uncertainty). On the other hand, plaintiff Livaudais and Borgnemouth’s 30(b)(6)
representative, speaking on behalf of plaintiff, could not identify any specific promise or
proposal which could trigger the doctrine of justifiable uncertainty. See, e.g., JC-50 at 32:7–33:5
(Wallis Deposition). The resulting conflict would force the Court to make a factual finding as to
the true extent of USACE’s communication and mitigation work related to Livaudais and
Borgnemouth’s category one property, which is inappropriate on a motion for summary
judgment. See Anderson, 477 U.S. at 248 (“summary judgment will not lie if the dispute about a
material fact is ‘genuine.’”).
Drawing all inferences in favor of plaintiffs, the communication and mitigation activities
described in Mr. Russo’s deposition and in various documents cited by plaintiffs could
conceivably create uncertainty as to the permanence of the damage to the relevant property, and
the conflict between Mr. Russo and Mr. Wallis’s deposition testimony complicates ascertaining
plaintiff’s subjective knowledge of mitigation efforts. See Section V, supra; Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986) (“On summary judgment the
inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable
to the party opposing the motion.” (citation and internal quotations omitted)). Accordingly, this
genuine dispute of material fact is sufficient to defeat the government’s Motion for Summary
Judgment as to plaintiffs Livaudais and Borgnemouth’s category one takings claim. See Section
V, supra.
c. Lake Eugenie
As discussed supra in relation to the Vincent Marshlands and Livaudais and
Borgnemouth properties, the record indicates USACE may have been committed to mitigation
efforts within the bounds of category one. Moreover, Charlton Ogden, Eugenie’s 30(b)(6)
- 34 -
witness, testified at his deposition “we were discussing issues going on with [USACE] and
DNR . . . from the late ‘80s to the ‘90s, and it was all about . . . restoring the damage that was
caused by the MRGO.” JC-321 at 134:2–8 (Ogden Deposition). The government argues Ogden
could not identify any particular promise or action taken by the government to remediate
MRGO-caused damage, and this precludes justifiable uncertainty. See Gov’t’s Reply at 26.
Taking the evidence in the light most favorable to plaintiff, however, the beneficial use projects
in category one could reasonably cause a property owner to become uncertain as to the
permanence of the damage to its land due to “the Corps’ mitigation efforts,” see Banks, 314 at
1309 (citing Applegate, 25 F.3d at 1583), and Ogden’s testimony regarding the consistent
communications with USACE and exchange of letters with the government, see, e.g. JC-321 at
134:2–19, could rise to the level of sufficient, subjective knowledge to create justifiable
uncertainty. See Matsushita, 475 U.S. at 587–88 (noting courts must draw all inferences at the
summary judgment stage “in the light most favorable to the party opposing the motion” (citation
omitted)). Given the parties dispute the extent of plaintiff Eugenie’s knowledge of government
commitments and projects to remediate damage caused by the MRGO within category one, the
Court would be forced to make a factual finding based on the evidence which would be
inappropriate at the summary judgment stage. See Anderson, 477 U.S. at 248 (“[S]ummary
judgment will not lie if the dispute about a material fact is ‘genuine.’”). Accordingly, plaintiffs
have produced sufficient evidence to show a genuine dispute of material fact to defeat the
government’s Motion for Summary Judgment as to Eugenie’s category one property. See supra
Section V; Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 1257 (Fed. Cir. 2001) (“In
determining whether there is a genuine issue of material fact, the trial court must assume that the
evidence presented by the non-movant is credible and draw all justifiable inferences therefrom in
the non-movant’s favor.”).
2. Category Two – South Lake Borgne-Channel
South Lake Borgne corresponds to geographical “Subunit 40” in the Final Feasibility
Report map, JC-607 at 2-58. See Section VII, supra. Subunit 40 includes the Livaudais, Vincent
Marshlands, Borgnemouth, Biloxi, and Lake Eugenie properties. See Biloxi, 152 Fed. Cl. at 281.
a. Vincent Marshlands
The parties each stated they are relying on the same set of evidence and arguments as
they made related to Vincent Marshlands’s category one properties. See Pls.’ Rev. MSJ at 171
(“Here the government relies on the same evidence and arguments it made relative to the Vincent
Category One Property. As a result, Plaintiffs will rely on the same evidence and arguments
presented above.”); Gov’t’s Reply at 31 (“The same evidence and argument discussed above in
relation to Vincent’s Category One property apply with equal force to Vincent’s Category Two
property.”).
The regional map of beneficial dredging projects along the MRGO, JC-477, (described in
Section VI, supra) shows beneficial dredging projects occurring along the southwestern shore of
Lake Borgne encompassed by category two. The map also shows a large area of work within
category two between the Vincent property and the Livaudais property, with a label showing
work was undertaken in 1993, 1995, and 2004. Id. The government contends the work being
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done in this region was not to rebuild land damaged by the MRGO, but was “intended to protect
the structural integrity of the land bridge on the north shore of the MRGO, separating the waters
of Lake Borgne and MRGO.” Tr. at 151:18–24. Plaintiff disputes this characterization and
argues “it was to rebuild land that had eroded before, and the concern was that the land had
eroded so much over time that it was little by little going to cause a break of the lake into the
MRGO.” Tr. at 153:25–154:3. A 7 April 1992 USACE environmental evaluation of the nearby
projects proposes to “designate new disposal sites provided for the beneficial use of dredged
material” and notes “[t]he proposed activity would result in the creation and nourishment of
wetlands and associated wildlife habitat.” JC-441 at 3 (Environmental Assessment #162). Ms.
Freese, moreover, testified she had been provided a map of “[a]n area of work that [USACE] was
going to be doing associated with the MRGO wetlands loss.” JC-279 at 147:11–18 (Freese
Deposition). This map, reproduced in the parties’ joint compendium as JC-296, shows a
highlighted area of work on the north shore of the MRGO which plaintiff confirmed at oral
argument is within the Vincent property. See Tr. at 52:2–15. Although the highlighted area of
the map is labeled “Overbank Cross-Section Surveys Area of Work,” plaintiffs and the
government dispute whether this “work” included mere surveys or projects to repair damage
caused by the MRGO. Compare Tr. at 52:5–10 (“[PLAINTIFFS:] the yellow portions of the
map, those are the areas that were supposed to be going to be restored by the Corps of Engineers
of the property through the placement of -- through the placement of dredge material going
forward”) with Tr. at 58:23–59:3 (“[GOVERNMENT:] [T]here’s no factual indication in the
record that these yellow highlights represent dredge material and not survey work”). Viewing
the record in the light most favorable to plaintiffs, however, a property owner in category two
could construe the government’s ongoing and proposed work as projects to replace lost land,
which could make them uncertain as to the permanence of the damage to its land due to “the
Corps’ mitigation efforts.” See supra Section V; Banks, 314 at 1309 (citing Applegate, 25 F.3d
at 1583). At this stage, a genuine dispute of material fact exists regarding the nature and extent
of the work being completed at the various beneficial dredging sites shown on JC-477 and the
map of work shown on JC-296, and whether plaintiffs could reasonably rely on that work to
support justifiable uncertainty. See id. Accordingly, plaintiffs have adduced sufficient evidence
to raise a genuine dispute of material fact to defeat the government’s Motion for Summary
Judgment as to Vincent’s property in category two. See Section V, supra; Monon, 239 F.3d at
1257 (“In determining whether there is a genuine issue of material fact, the trial court must
assume that the evidence presented by the non-movant is credible and draw all justifiable
inferences therefrom in the non-movant’s favor.”).
b. Livaudais and Borgnemouth
The parties each stated they are relying on the same set of evidence and arguments as
they made related to Livaudais and Borgnemouth’s category one properties. See Pls.’ Rev. MSJ
at 171 (“Here the government relies on the same evidence and arguments it made relative to the
Livaudais’ and Borgnemouth’s Category One Properties. Therefore, Plaintiffs will rely on the
same evidence and arguments presented above.”); Gov’t’s Reply at 31 (“The same evidence and
argument discussed above in relation to Livaudais and Borgnemouth’s Category One property
apply with equal force to Livaudais and Borgnemouth’s Category Two property.”).
The same regional map of beneficial dredging projects along the MRGO, JC-477
- 36 -
(described in Section VI, supra, and analyzed in Section VII.A.2.a, supra), shows significant
beneficial dredging deposition in 1993, 1995, and 2004 within the Livaudais and Borgnemouth
properties in category two. Likewise, Environmental Assessment #162’s 7 April 1992 proposal
to “designate new disposal sites provided for the beneficial use of dredged material” to result in
“the creation and nourishment of wetlands and associated wildlife habitat” also applies to these
areas within the Livaudais and Borgnemouth property. See JC-441 at 3 (Environmental
Assessment #162). Viewing this evidence in the light most favorable to plaintiffs, a property
owner in category two could see the government executing projects to replace lost land, which
could make the landowner uncertain as to the permanence of the damage to its land due to “the
Corps’ mitigation efforts.” See supra Section V. At this stage, a genuine dispute of material fact
exists regarding the nature and extent of the work being completed at the various beneficial
dredging sites shown on JC-477 and whether plaintiffs could reasonably rely on those projects to
support justifiable uncertainty. See Banks, 314 F.3d at 1309 (citing Applegate, 25 F.3d at 1583).
Accordingly, plaintiffs have adduced sufficient evidence to raise a genuine dispute of material
fact to defeat the government’s Motion for Summary Judgment as to Livaudais and
Borgnemouth’s property in category two. See Monon, 239 F.3d at 1257; Section V, supra.
c. Biloxi
The parties each stated they are relying on the same set of evidence and arguments for
Biloxi’s category two properties as presented for Lake Eugenie’s category one properties. See
Pls.’ Rev. MSJ at 171 (“Here the government relies on the same evidence and arguments it made
relative to the Eugenie’s Category One Properties. Therefore, Plaintiffs will rely on the same
evidence and arguments presented above.”); Gov’t’s Reply at 32 (“The same evidence and
argument discussed above in relation to Eugenie’s Category One property apply with equal force
to Biloxi’s Category Two property.”).
As discussed supra, the regional map of beneficial use of dredge material along the
MRGO shows numerous government projects occurring in 1993, 1995, and 2004 within category
two and near the Biloxi property. See JC-477 (described in Section VI, supra, and analyzed in
Section VII.A.2.a, supra). Likewise, environmental assessment #162’s proposal to “designate
new disposal sites provided for the beneficial use of dredged material” to result in “the creation
and nourishment of wetlands and associated wildlife habitat” applies to these category two
properties. JC-441 at 3 (Environmental Assessment #162). As the Court explained in Section
VII.A.1.c, supra, Charlton Ogden, testifying as both Biloxi and Eugenie’s 30(b)(6)
representative, stated the plaintiffs were “discussing issues going on with [USACE] and
DNR . . . from the late ‘80s to the ‘90s, and it was all about . . . restoring the damage that was
caused by the MRGO.” JC-321 at 134:2–8 (Ogden Deposition). Viewing this evidence in the
light most favorable to plaintiffs, however, a property owner in category two could see the
government executing projects to replace lost land, which could make them uncertain as to the
permanence of the damage to its land due to “the Corps’ mitigation efforts.” See Section V,
supra. At this stage, a genuine dispute of material fact exists regarding the nature and extent of
the work being completed at the various beneficial dredging sites shown on JC-477 near the
Biloxi category two property and whether plaintiffs can reasonably rely on this work to support
justifiable uncertainty. See Section V, supra. Accordingly, plaintiffs have adduced sufficient
evidence to raise a genuine dispute of material fact to defeat the government’s Motion for
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Summary Judgment as to plaintiff Biloxi’s property in category two. See Monon, 239 F.3d at
1257; Section V, supra.
3. Category Three – MRGO Spoil Bank
Category three, the MRGO Spoil Bank corresponds to geographical “Subunit 32” in the
Final Feasibility Report map, JC-607 at 2-58. See Section VII, supra. Subunit 32 is composed
of dredged material placed along the southern shore of the MRGO, separating the MRGO
channel from Subunit 13 and 23. See Biloxi, 152 Fed. Cl. at 289. Subunit 32 includes Vincent
Marshlands, Livaudais and Borgnemouth, Lake Eugenie, and Biloxi properties. See id. For each
of plaintiffs’ claims in category three, plaintiffs and the government rely solely on their
presentation of evidence related to the same plaintiffs’ claims in categories one and two. See
Pls.’ Rev. MSJ at 172; Gov’t’s Reply at 32.
a. Vincent Marshlands
Category three runs along the southern shore of the MRGO from the southeastern coast
of Lake Borgne to the MRGO’s outlet into the Gulf of America, at the junction of Subunits 23
and 18. See Section VII, supra, (reproducing the Final Feasibility Report map, JC-607 at 2-58).
The regional map of beneficial use of dredge material along the MRGO, JC-477, shows at least
one area of beneficial use of dredged material within the northern section of category three
within the Livaudais and Borgnemouth property and abutting Eugenie’s sliver of property
spanning categories one and three. See JC-477 (described in Section VI, supra, and analyzed in
Section VII.A.2.a, supra). This area of work is labelled as occurring in 1993. See id. As
discussed in Section VII.A.1.a, supra, Karen Freese was in contact with the Port of New Orleans
in the early 1990s, regarding USACE “wanting to do projects on the [Vincent] property to help
address the loss of wetlands and the erosion” caused by the MRGO, and Ms. Freese testified to
“various time that the Corps approached [Vincent] about doing work to help restore the
property.” See JC-279 at 40:15–24, 48:16–24 (Freese Deposition). Viewing the evidence in the
light most favorable to plaintiffs, these contacts with USACE regarding remediation projects
combined with actual beneficial use of dredged materials within category three could cause
Vincent to be reasonably uncertain to the permanence of damage to property due to “the Corps’
mitigation efforts.” See Banks, 314 F.3d at 1309 (citing Applegate, 25 F.3d at 1583);
Matsushita, 475 U.S. at 587–88 (noting courts must draw all inferences at the summary
judgment stage “in the light most favorable to the party opposing the motion”). At this stage, a
genuine dispute of material fact exists regarding the nature and extent of: (1) the work being
completed at the beneficial dredging sites shown on JC-477 within category three and (2)
Vincent’s subjective knowledge of those projects. See Sections VII.A.1.a, VII.A.2.a, supra;
Banks, 314 F.3d at 1309 (citing Applegate, 25 F.3d at 1583). Given the parties dispute the extent
of plaintiff Vincent’s knowledge of government projects to remediate damage caused by the
MRGO in category three, as well as the extent of those projects, the Court would be forced to
make a factual finding based on the evidence which would be inappropriate at the summary
judgment stage. See supra, Section V; Anderson, 477 U.S. at 248. Accordingly, plaintiffs have
adduced sufficient evidence to raise a genuine dispute of material fact to defeat the government’s
Motion for Summary Judgment as to plaintiff Vincent’s property in category three. See Section
V, supra; Monon, 239 F.3d at 1257.
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b. Livaudais and Borgnemouth
As discussed supra, the regional map of beneficial use of dredge material along the
MRGO, JC-477, shows at least one area of beneficial use within the northern section of category
three within the Livaudais and Borgnemouth property and abutting Eugenie’s sliver of property
spanning categories one and three. See JC-477 (described in Section VI, supra, and analyzed in
Sections VII.A.2.a, VII.A.3.a, supra). This area of work is labelled as occurring in 1993. See id.
The Court explained in Section VII.A.1.b, supra, USACE was in contact with Livaudais and
Borgnemouth “for many years” prior to 1998 through Bob Gunn and Edmond Russo concerning
mitigation efforts related to damage caused by the MRGO. See JC-593 at 60:25–65:10 (Russo
Deposition). Viewing the evidence in the light most favorable to plaintiffs, these contacts with
USACE regarding remediation projects combined with actual beneficial use of dredged materials
within category three could cause Livaudais and Borgnemouth to be reasonably uncertain to the
permanence of the damage to its property due to “the Corps’ mitigation efforts.” See Banks, 314
F.3d at 1309 (citing Applegate, 25 F.3d at 1583); Matsushita, 475 U.S. at 587–88 (noting courts
must draw all inferences at the summary judgment stage “in the light most favorable to the party
opposing the motion”). At this stage, a genuine dispute of material fact exists regarding the
nature and extent of: (1) the work being completed at the beneficial dredging sites shown on
JC-477 near the Livaudais and Borgnemouth category three property and (2) Livaudais and
Borgnemouth’s subjective knowledge of those projects. See Banks, 314 F.3d at 1309 (citing
Applegate, 25 F.3d at 1583). Given the parties dispute the extent of plaintiffs Livaudais and
Borgnemouth’s knowledge of government projects to remediate damage caused by the MRGO in
category three, as well as the extent of those projects, the Court would be forced to make a
factual finding based on the evidence which would be inappropriate at the summary judgment
stage. See supra, Section V; Anderson, 477 U.S. at 248. Accordingly, plaintiffs have adduced
sufficient evidence to raise a genuine dispute of material fact to defeat the government’s Motion
for Summary Judgment as to plaintiffs Livaudais and Borgnemouth’s property in category three.
See Section V, supra; Monon, 239 F.3d at 1257.
c. Lake Eugenie and Biloxi
The parties each stated, for Lake Eugenie and Biloxi’s category three properties, they are
relying on the same set of evidence and arguments as they made related to Lake Eugenie’s
category one properties. See Pls.’ Rev. MSJ at 172 (“[T]he government relies on the same
evidence and arguments it presented relative to the Eugenie’s Category One Properties as
applicable to the Biloxi and Eugenie’s Category Three Properties. Therefore, Plaintiffs will rely
on the same evidence and arguments presented above.”); Gov’t’s Reply at 32 (“The same
evidence and argument discussed above in relation to Vincent’s, Livaudais and Borgnemouth’s,
and Eugenie’s Category One properties apply with equal force to those Plaintiffs’ Category
Three properties.”).
As discussed supra, the regional map of beneficial use of dredge material along the
MRGO, JC-477, shows at least one area of beneficial use within the northern section of category
three within the Livaudais and Borgnemouth property and abutting Eugenie’s sliver of property
spanning categories one and three. See JC-477 (described in Section VI, supra, and analyzed in
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Sections VII.A.2.a, VII.A.3.a–b, supra). This area of work is labelled as occurring in 1993. See
id. The Court explained in Section VII.A.1.c, supra, Charlton Ogden, testifying as both Biloxi
and Eugenie’s 30(b)(6) representative, stated the plaintiffs were “discussing issues going on with
[USACE] and DNR . . . from the late ‘80s to the ‘90s, and it was all about . . . restoring the
damage that was caused by the MRGO.” JC-321 at 134:2–8 (Ogden Deposition). Viewing the
evidence in the light most favorable to plaintiffs, these contacts with USACE regarding
remediation projects combined with actual beneficial use of dredged materials within category
three could cause Eugenie and Biloxi to be reasonably uncertain to the permanence of the
damage to their property due to “the Corps’ mitigation efforts.” See Banks, 314 F.3d at 1309
(citing Applegate, 25 F.3d at 1583); Matsushita, 475 U.S. at 587–88 (noting courts must draw all
inferences at the summary judgment stage “in the light most favorable to the party opposing the
motion”). At this stage, a genuine dispute of material fact exists regarding the nature and extent
of: (1) the work being completed at the beneficial dredging sites shown on JC-477 within
category three and (2) Eugenie’s subjective knowledge of those projects. Given the parties
dispute the extent of plaintiffs Eugenie and Biloxi’s knowledge of government projects to
remediate damage caused by the MRGO in category three, as well as the extent of those projects,
the Court would be forced to make a factual finding based on the evidence which would be
inappropriate at the summary judgment stage. See Anderson, 477 U.S. at 248. Accordingly,
plaintiffs have adduced sufficient evidence to raise a genuine dispute of material fact to defeat
the government’s Motion for Summary Judgment as to plaintiffs Biloxi and Eugenie’s property
in category three. See Section V, supra; Monon, 239 F.3d at 1257.
B. Whether the Evidence, Taken in the Light Most Favorable to Plaintiffs,
Establishes Plaintiffs Were Justifiably Uncertain About the Permanence of
the Damage to Their Property in Categories Four, Six, and Seven 4
1. Category Four – Biloxi Marshes Interior
Biloxi Marshes Interior corresponds to geographical “Subunit 07” in the Final Feasibility
Report map, JC-607 at 2-58. See Section VII, supra. Subunit 07 includes Biloxi and Lake
Eugenie properties. See Biloxi, 152 Fed. Cl. at 293. The “‘Biloxi Marshes’ is a geographical
name for the remnant marshes of the St. Bernard delta, which is distinct from the Biloxi Marsh
Land Corporation, a legal entity.” JC-57 at 21 (2017 Mendelssohn Report at 16). The
boundaries of the Biloxi Marshes Interior do not touch the MRGO channel itself, as the
marshlands of South Lake Borgne separate the two. See JC-607 at 2-58 (2012 Feasibility
Report). The Biloxi Marshes Interior subunit is located to the north of the MRGO and borders
Lake Borgne’s shoreline. See id.
The parties each stated they are relying on the same set of evidence and arguments for
Biloxi and Lake Eugenie category four properties as presented for Lake Eugenie’s category one
properties. See Pls.’ Rev. MSJ at 172 (“Here the government relies on the same evidence and
arguments it presented relative to the Eugenie’s Category One Properties as applicable to the
Biloxi and Eugenie’s Category Four Properties. Therefore, Plaintiffs will rely on the same
evidence and arguments presented above.”); Gov’t’s Reply at 32 (“The same evidence and
4
In the Court’s January 2021 order, the Court dismissed plaintiffs’ takings claims related to category five properties.
See Biloxi Marsh Lands Corp. v. United States, 152 Fed. Cl. 254, 300, 310 (2021).
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argument discussed above in relation to Eugenie’s Category One properties apply with equal
force to Biloxi and Eugenie’s Category Four properties.”).
The regional map of beneficial use of dredge material along the MRGO, JC-477—which
has thus far formed the backbone of plaintiffs’ evidence of government action to support
justifiable uncertainty—shows no beneficial use projects occurring at any time within category
four. In their brief, plaintiffs made no attempt to specifically designate any federal projects
occurring in category four. See generally Pls.’ Rev. MSJ. Plaintiffs instead point generally to
Charlton Ogden’s deposition testimony, various letters proposing hydrographic surveys, plans
for MRGO remediation from 1998 or later, and two Acts of Congress, including the 1990
WRDA and the 1990 Breaux Act. See Pls.’ Rev. MSJ at 169–70. Plaintiffs, however, do not
connect any of this evidence to showing an objectively reasonable basis for justifiable
uncertainty as to the permanence of the damage to their property in category four. Although
plaintiffs point generally to Mr. Ogden’s deposition to support their argument, plaintiffs do not
identify any particular statement from Mr. Ogden’s deposition which shows a promise or action
by the United States which could reasonably create uncertainty as to the permanence of the
damage specifically to the Biloxi and Eugenie properties in category four. See id. Likewise,
none of the hydrographic surveys specifically reference remediation work to be performed within
category 4; while ongoing surveys which contemplate remediation in the future as part of a
broader ongoing effort to repair damage in a particular land category may be considered for
purposes of justifiable uncertainty, preliminary studies standing alone are insufficient. See
Mildenberger, 643 F.3d at 948 (holding “consideration of potential projects to improve
management of waterways” insufficient to support justifiable uncertainty because they “did not
commit [USACE] to any mitigation activities” and the proposed projects never
“materialized”). Plaintiffs concede each of the plans they cite were published too late to support
justifiable uncertainty in this case. See Pls.’ Rev. MSJ at 170 (“The government complains that
those studies were published too late. But they were not intended to interrupt the statute of
limitations.”). Finally, neither the 1990 WRDA nor the Breaux Act committed the United States
to any specific action to remediate damage caused by the MRGO specifically in category
4. Further, plaintiffs do not dispute the 1990 WRDA set a national goal of “no net loss of
acreage” of wetlands, see JC-321 at 303:17–25 (Ogden Deposition), but did not promise or
require any specific action to remediate MRGO-caused damage in category four. See Pls.’ Rev.
MSJ at 170–71. The Breaux Act directed the Corps to establish a comprehensive plan to restore
Louisiana wetlands generally and called for the development of annual lists of priority projects
for the area, but did not require the United States to promise or complete any specific mitigation
project related to the MRGO, let alone a specific mitigation project in category four. See JC-27
at 11–12 (1994 MRGO Bank Erosion Reconnaissance Report at 3–4) (“These reports
recommend projects which can be implemented within a 5-year period, as required by the
authorization.”). The 1990 WRDA directed the Secretary of the Army to “include environmental
protection as one of the primary missions of the Corps of Engineers in planning, designing,
construction, operating, and maintaining water resources projects,” 33 U.S.C. § 2316, and stated
the Corps shall have “an interim goal of no overall net loss of the Nation’s remaining wetlands
base, as defined by acreage and function, and a long-term goal to increase the quality and
quantity of the Nation’s wetlands, as defined by acreage and function,” 33 U.S.C. § 2317. The
goals and priorities of both of these statutes are national in scope and do not commit the
government to any mitigation projects specific to restoring Biloxi and Lake Eugenie’s properties
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in category four, and plaintiffs provide no evidence of specific remediation projects in category 4
which could be traced to these federal statutes. Accordingly, none of plaintiffs’ asserted
evidence related to Eugenie and Biloxi’s properties demonstrates subjective knowledge of a
government promise or action to remediate MRGO-caused damage which could reasonably
create uncertainty as to the permanence of the damage to their properties. See Section V, supra.
In keeping with the Court’s obligation at the summary judgment stage to view the
evidence and make all inferences “in the light most favorable to the party opposing the motion,”
throughout this opinion the Court has permitted plaintiffs to rely on projects conducted on other
plaintiffs’ properties within the same land category to show government remediation action. See
Matsushita, 475 U.S. at 587–88 (noting courts must draw all inferences at the summary
judgment stage “in the light most favorable to the party opposing the motion”); Monon, 239 F.3d
at 1257 (“In determining whether there is a genuine issue of material fact, the trial court must
assume that the evidence presented by the non-movant is credible and draw all justifiable
inferences therefrom in the non-movant’s favor.” (citation omitted)). Plaintiffs, nevertheless,
must still adduce evidence of subjective knowledge of government promises or action which
could create objectively reasonable uncertainty as to the permanence of the damage to their land.
See Boling, 220 F.3d at 1372 (finding plaintiffs could not prevail without showing subjective
knowledge); Mildenberger, 643 F.3d at 947–48 (finding claimants could not prevail without
proving knowledge was objectively justifiable); Section V, supra. Plaintiffs invoke evidence
related to previous land categories to support justifiable uncertainty on Biloxi and Eugenie’s
property in category four. See Pls.’ Rev. MSJ at 172. Given plaintiffs must show subjective
knowledge, plaintiffs may not rely on knowledge held by other plaintiffs to support justifiable
uncertainty because the core question is whether “the landowners did not know when or if their
land would be permanently destroyed.” See Applegate, 25 F.3d at 1582. In the same vein, it is
not objectively justifiable to rely on government promises or actions to remediate damage in
other categories of land to support uncertainty about the permanence of the damage to a
plaintiff’s land in a different category unaffected by the government action or promise. See
Mildenberger, 643 F.3d at 947–48 (finding claimants could not prevail without proving
knowledge was objectively justifiable). In short, each plaintiff must show its own subjective
knowledge of government promises or actions which creates uncertainty as to the permanence of
the damage to its own specific land categories.
Accordingly, given plaintiffs’ evidence related to Eugenie and Biloxi’s properties
demonstrates no subjective knowledge of a government promise or action to remediate
MRGO-caused damage which would reasonably create uncertainty as to the permanence of the
damage to their properties in category four, the doctrine of justifiable uncertainty does not apply.
See Section V, supra. Absent justifiable uncertainty, plaintiffs Eugenie and Biloxi’s claim
related to its category four property stabilized “no later than 1988,” Biloxi, 152 Fed. Cl. at 297,
and therefore expired no later than 1994, six years after stabilization and long before plaintiffs
filed this action. See Section V, supra. Accordingly, the Court lacks jurisdiction over plaintiffs’
takings claims related to their category four property, and the Court must grant the government’s
Motion for Summary Judgment as to those claims. See Section V, supra.
2. Category Six – Eloi Bay
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Eloi Bay corresponds to geographical “Subunit 18” in the Final Feasibility Report map,
JC-607 at 2-58. See Section VII, supra. Subunit 18 includes Terre Aux Boeufs, Lake Eugenie,
and Biloxi properties. See Biloxi, 152 Fed. Cl. at 300–01. Eloi Bay is situated on the northern
channel bank of the MRGO, east of South Lake Borgne subunit and extending north into the
marshlands below the Biloxi Marshes Interior and Exterior. See id.
a. Lake Eugenie and Biloxi
The parties each stated they are relying on the same set of evidence and arguments as
they made related to Lake Eugenie’s category one properties. See Pls.’ Rev. MSJ at 172–73
(“Here the government relies on the same evidence and arguments it presented relative to the
Eugenie’s Category One Properties as applicable to the Biloxi and Eugenie’s Category Six
Properties. Therefore, Plaintiffs will rely on the same evidence and arguments presented
above.”); Gov’t’s Reply at 33 (“The same evidence and argument discussed above in relation to
Eugenie’s Category One properties apply with equal force to Biloxi and Eugenie’s Category
[Six] properties.”).
As the Court held supra relating to Eugenie and Biloxi’s category four properties, the
evidence cited by plaintiffs relating to the category one properties does not demonstrate
subjective knowledge of a government promise or action to remediate MRGO-caused damage
which would reasonably create uncertainty as to the permanence of the damage to their
properties. See Section VII.B.1, supra. Looking to the regional map of beneficial dredging
projects along the MRGO, JC-477, however, the parties agreed at oral argument there is a
highlighted section of work from 1992 and 1996 within category six near the northern bank of
the MRGO. See Tr. at 170:16–172:2. Plaintiffs state “[t]here was a canal there that was filled in,
that had eroded because of salt water coming in from the MRGO, backing into that marsh there.”
Tr. at 171:25–172:2. The Court explained in Section VII.A.1.c, supra, Charlton Ogden,
testifying as both Biloxi and Eugenie’s 30(b)(6) representative, stated the plaintiffs were
“discussing issues going on with [USACE] and DNR . . . from the late ‘80s to the ‘90s, and it
was all about . . . restoring the damage that was caused by the MRGO.” JC-321 at 134:2–8
(Ogden Deposition). At this stage, a genuine dispute of material fact exists regarding the nature,
timing, and extent of: (1) the work being completed at the beneficial dredging site shown on
JC-477 near the Eugenie and Biloxi category six properties and (2) plaintiffs’ subjective
knowledge of those projects. Given the parties dispute the extent of plaintiffs’ knowledge of
government projects to remediate damage caused by the MRGO in category six, as well as the
extent of those projects, the Court would be forced to make a disputed factual finding based on
the evidence which would be inappropriate at the summary judgment stage. See Anderson, 477
U.S. at 248. Accordingly, plaintiffs have adduced sufficient evidence to raise a genuine dispute
of material fact to defeat the government’s Motion for Summary Judgment as to plaintiffs
Eugenie and Biloxi’s property in category six. See Section V, supra; Monon, 239 F.3d at 1257.
b. Terre Aux Boeufs
Regarding plaintiff Terre Aux Boeufs’s category six property, plaintiffs stated at oral
argument the evidence in support of justifiable uncertainty related to this property is “that Mr.
Zollinger’s”—Terre Aux Boeufs’s 30(b)(6) representative—“father was a member of the board
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of directors of Biloxi Marsh, and all of these three things we have relied on for purposes of
Biloxi Marsh have been discussed in board meetings of Biloxi Marsh.” Tr. at 174:3–11. In other
words, plaintiffs argue, because Zollinger’s father was a member of the board for Biloxi Marsh,
then Zollinger’s father would be aware of the evidence and communications related to that
property, and then, due to their familial relationship, the knowledge of that evidence can be
imputed to Zollinger, and thus to Terre Aux Boeufs. See Tr. at 174:14–19 (“THE COURT: It’s
just the imputing, as the Government has described, the imputing of evidence from other
property owners to Zollinger for Terre Aux Boeufs. [PLAINTIFFS]: Yes, because . . . the father
is dead.”). The government argues “[t]here is no logical or legal basis supporting Plaintiffs’
position that other peoples’ claimed knowledge could be ‘imputed’ to Mr. Zollinger’s father, and
that imputed knowledge could somehow supplement Mr. Zollinger’s 30(b)(6) testimony.”
Gov’t’s Reply at 35.
RCFC 30(b)(6) directs an organization to produce a witness to “testify about information
known or reasonably available to the organization.” While Terre Aux Boeufs’s 30(b)(6) witness,
Mr. Zollinger (who joined the Terre Aux Boeufs Board in 2008) provided few specifics on his
own subjective knowledge of government projects to remediate Terre Aux Boeufs’s property in
the past, see, e.g., JC-52 at 58:5–11 (Zollinger Deposition), his testimony did raise a genuine
dispute of material fact. As Mr. Zollinger noted in his deposition, his father “had joint
directorship with Lake Eugenie and Terre aux Boeufs starting in 1987,” and his brother would
later take over similar positions prior to Mr. Zollinger’s own subsequent role on the boards of
these organizations. JC-52 at 62:5–64:2 (Zollinger Deposition). Moreover, Zollinger testified
his “father and brother were directors over Eugenie and Biloxi,” so “[a]ny knowledge . . . they
heard in those meetings would carry over to . . . Terre aux Boeufs . . . because they were also on
the board of Terre aux Boeufs.” Id. Mr. Zollinger reviewed extensive board meeting notes
detailing Eugenie’s and Biloxi’s concern over erosion, as well as the USACE’s repeated requests
for entry onto their land, including “11 [times in 1988], 11 of ’91, 1 of ’93, 3 of ’93, 7 of ’94, 8
of ’95, 12 of ’96, and then the Terre aux Boeufs one was 2 of ‘98.” See JC-52 at 67:4–75:5
(Zollinger Deposition). Additionally, as the Court noted for Biloxi and Lake Eugenie’s category
six properties, the regional map of beneficial dredging projects along the MRGO, JC-477, shows
a highlighted section of work from 1992 and 1996 within category six near the northern bank of
the MRGO. See Section VII.B.2.a, supra; see also Tr. at 170:16–172:2 (parties acknowledging
this work). While the government casts doubt on whether Rule 30(b)(6) enables a factfinder to
impute knowledge of government mitigation projects from one company (such as Eugenie or
Biloxi) to another company (such as Terre Aux Boeufs) through board members common to all
companies, see Gov’t’s Reply at 25, at this stage, a genuine dispute of material fact exists
regarding the nature, timing, and extent of: (1) the work being completed at the beneficial
dredging site shown on JC-477 near the Terre Aux Boeufs category six property and (2)
plaintiffs’ subjective knowledge of those projects. Given the parties
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