Riverview Farms v. United States

CORRECTED

In the United States Court of Federal Claims

No. 18-1099C

Filed: November 20, 2019

)

RIVERVIEW FARMS, et al., )

)

Plaintiffs, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

)

)

Ethan A. Flint, Flint Law Firm, LLC, Edwardsville, IL, for plaintiffs, with whom was Adam M.

Riley, Flint Law Firm, LLC, Edwardsville, IL, of counsel.

Edward C. Thomas, IV, National Resources Section, Environment and National Resources

Division, U.S. Department of Justice, Washington, D.C., for defendant, with whom were

Brigman L. Harman and Dustin J. Weisman, National Resources Section, Environment and

National Resources Division, U.S. Department of Justice, Washington, D.C., of counsel.

OPINION AND ORDER

HERTLING, Judge

The plaintiffs in this fifth amendment takings case own land in Kentucky, Illinois, and

Missouri, that is allegedly subject to flooding from the Mississippi and Ohio Rivers. They allege

that the United States took their land without just compensation because it has constructed river-

training structures and dams, which have started to cause atypical flooding. The United States

moved to dismiss the action under Rules 12(b)(1) and 12(b)(6) of the Rules of the Court of

Federal Claims (“RCFC”). The government argues that the plaintiffs’ claims, if true, are time-

barred, and alternatively, that the Amended Complaint fails to state a claim for a taking. For the

reasons explained below, the Court defers the government’s motion to dismiss for lack of subject

matter jurisdiction and denies the government’s motion to dismiss for failure to state a claim.

I. BACKGROUND

A. Legal Background

The government’s motion to dismiss for lack of subject-matter jurisdiction turns on when

a taking occurs. That is a highly factual inquiry, but one that requires an understanding of the

Tucker Act’s claim-accrual and statute-of-limitations principles.

The government’s motion to dismiss for lack of subject-matter jurisdiction turns on when

a taking occurs. That is a highly factual inquiry, but one that requires an understanding of the

Tucker Act’s claim-accrual and statute-of-limitations principles.

As a threshold matter, the Takings Clause of the fifth amendment of the United States

Constitution provides that “private property [shall not] be taken for public use, without just

compensation.” U.S. Const. amend. V. The Federal Circuit has established a two-part test for

whether a plaintiff is owed compensation for a taking: “[f]irst, as a threshold matter, . . .

whether the claimant has established a property interest for the purposes of the fifth

amendment[;]” and “[s]econd, after having identified a valid property interest, . . . whether the

government action amounted to a compensable taking of that property interest.” Huntleigh USA

Corp. v. United States, 525 F.3d 1370, 1377-78 (Fed. Cir. 2008).

The Tucker Act waives sovereign immunity for certain claims against the United States,

including fifth amendment takings claims. See 28 U.S.C. § 1491; see also United States v.

Sherwood, 312 U.S. 584, 586 (1941). The waiver of immunity “may not be inferred, but must be

‘unequivocally expressed.’” United States v. White Mountain Apache Tribe, 537 U.S. 465, 472

(2003) (quoting United States v. Mitchell, 445 U.S. 535, 538 (1980)). When any statutory

waiver of sovereign immunity includes a statute of limitations, “‘the limitations provision

constitutes a condition on the waiver of sovereign immunity.’” Yankton Cty., South Dakota v.

United States, 135 Fed. Cl. 620, 628 (2017), aff’d, 753 F. App’x 905 (Fed. Cir. 2019), cert.

denied sub nom. Yankton Cty., S.D. v. United States, No. 18-1417, 2019 WL 4921357 (U.S. Oct.

7, 2019) (quoting Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287

(1983)).

Under the Tucker Act, monetary claims against the United States must be brought within

six years from the date the claim accrued. See 28 U.S.C. § 2501. In general, a claim accrues

“when all the events have occurred that fix the alleged liability of the government and entitle the

claimant to institute an action.” Ingrum v. United States, 560 F.3d 1311, 1314 (Fed. Cir. 2009).

Under the stabilization doctrine, however, the Supreme Court has recognized that “the statute of

limitations d[oes] not bar an action under the Tucker Act for a taking by flooding when it [is]

uncertain at what stage in the flooding operation the land had become appropriated for public

use.” United States v. Dow, 357 U.S. 17, 27 (1958); see also United States v. Dickinson, 331

U.S. 745, 747 (1947) (developing the stabilization doctrine). In such instances, the statute of

limitations is tolled until the claim stabilizes, which is when “it becomes clear that the gradual

process set into motion by the government has effected a permanent taking[.]” Boling v. United

States, 220 F.3d 1365, 1370-71 (Fed. Cir. 2000).

The stabilization doctrine is not an exception to the general rules of claim accrual; it is

another type of claim accrual. Id. at 1371. The doctrine recognizes both that takings by flooding

or gradual processes cannot be as readily ascertained as a taking by one event, but also that the

Tucker Act’s statute of limitations requires some line-drawing.

In a takings case involving flooding after riparian changes and new groundwater retention

practices in California’s Central Valley, the Court of Claims, the Federal Circuit’s predecessor

court, acknowledged that a broad interpretation of the stabilization doctrine would be in

“unending conflict with the statute of limitations.” Gustine Land & Cattle Co. v. United States,

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174 Ct. Cl. 556, 656-57 (1966). The application of the doctrine means that stabilization often

occurs before “the damages are complete and fully calculable.” See Mildenberger v. United

States, 643 F.3d 938, 946 (Fed. Cir. 2011) (takings claim time barred when plaintiffs postponed

suit until damages complete). In this case before the Court, a taking occurred, and the statute of

limitations began to run when it became clear that the gradual pattern of intermittent flooding

had effected a permanent taking.

B. Factual Background

1. The Plaintiffs

The plaintiffs in this action are landowners, including farmers and owners of recreational

land, in Kentucky, Illinois and Missouri. They allege that their land has been taken due to

flooding of the Mississippi and Ohio Rivers. Although neither the Complaint nor the Amended

Complaint provide exact addresses for the majority of the plaintiffs, the information in the

Amended Complaint discloses that the plaintiffs’ properties are relatively equally split between

the Lower Ohio River and the Lower Mississippi River, south of the confluence of the

Mississippi and Ohio Rivers at Cairo, Illinois. 1 The map below shows the area where the

plaintiffs’ properties appear to be:

1

Several plaintiffs’ properties were only identified by a street, town or county. Other plaintiffs’

properties were more readily identifiable because their properties were denoted by intersections,

road boundaries, or exact addresses. One plaintiff’s property appears to be located near the

Tennessee River. The plaintiffs did not make any allegations, either in their complaint or

response to the government’s motion to dismiss, about the Tennessee River.

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(See Defendant’s Motion to Dismiss (“Def. Mot.”), Ex. 3 at Ex. A, ECF 36-3 (map of Ohio

River, Mississippi River, and Tennessee River, showing the Birds Point-New Madrid Floodway

on the Mississippi River and the Barkley Dam and Kentucky Dam on the Tennessee and

Cumberland Rivers, tributaries of the Ohio River).)

For the purpose of this opinion, the Court considers the plaintiffs in two groups: the

Mississippi River plaintiffs and the Ohio River plaintiffs.

2. Navigation Improvements, River-Training Structures and Flooding

Although both the Mississippi and Ohio Rivers have a long history of flooding, the

actions taken by the U.S. Army Corps of Engineers (“Corps”) have differed on each river. Since

the nineteenth century, the Corps has been changing the flow of the Mississippi and Ohio Rivers

to mitigate the impacts of flooding and improve navigability through “river training” or “river

manipulation.” (Amended Complaint (“Am. Compl.”) ¶ 2, ECF 10; see also Defendant’s

Motion to Dismiss (“Def. Mot.”), Ex. 3, Ex. A at 29, ECF 36-3.)

Insofar as relevant, the Corps manages sections of the Mississippi and Ohio Rivers as

follows: (1) the Middle Mississippi River (“MMR”), from the confluence with the Missouri

River to the confluence with the Ohio River at Cairo, Illinois; (2) the Lower Mississippi River

(“LMR”), from the confluence of the Ohio River to the Gulf of Mexico; and (3) the Lower Ohio

River (“LOR”), from the Smithland Lock and Dam to the confluence with the Mississippi River

at Cairo, Illinois. (Def. Mot. at 3, ECF 36.)

a. Mississippi River

Since 1824, Congress has mandated navigation and flood-mitigation improvements to the

Mississippi River. 2 Beginning in 1910, Congress authorized the use of river-training structures,

which reduce expenditures and minimize maintenance dredging by “re-directing the river’s

energy to achieve a desired velocity and/or scour pattern to deepen or provide better alignment

for the navigation channel.” (Def. Mot., Ex. 1 at 5, ECF No. 36-1.) The purpose of such

structures is to “constrict the river channel, concentrate flow, redirect sediment, and deepen and

maintain the navigable portion of the channel.” (Am. Compl. ¶ 169, ECF 10.) The types of

river-training structures at issue in this case are pictured below, clockwise, starting at the upper

right: wing dikes, bendway weirs, W-dikes, S-dikes (a.k.a. Z-dikes), and chevron dikes.

2

See, e.g., Rivers & Harbors Act of 1824, 18 Cong. Ch. 140, 4 Stat. 32, 33; Act of June 10,

1872, 42 Cong. Ch. 415, 17 Stat. 347; Act of Mar. 3, 1873, 42 Cong. Ch. 233, 17 Stat. 560; Act

of June 25, 1910, Pub. L. No. 61-264 36 Stat. 630, 654, 658-59; Act of Mar. 4, 1913, Pub. L. No.

62-241, 37 Stat. 801; Act of Mar. 2, 1913, Pub. L. No. 62-429, 37 Stat. 725; Act of July 27,

1916, Pub L. No. 64-168, 39 Stat. 391; Rivers & Harbors Act of Jan. 21, 1927, Pub. L. No. 69-

560, 44 Stat. 1010, 1012-13 (the “1927 Act”).

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(Def. Mot., Ex. 8 at Exs. E, J, G, H, F, ECF 36-8.)

During the twentieth century and continuing into the present, the Mississippi River has

experienced several especially severe floods, including in 1926 and 1927, 1973, 1993, 2011 and

2016. In 1926 and early 1927, the River flooded, inundating approximately 26,000 square miles

in the Lower Mississippi Valley. This historic flooding displaced 600,000 people and killed 250.

(Def. Mot., Ex. 3 at IV-4, ECF 36-3.) In response to that flood, in January 1927, Congress

authorized river manipulation on the Mississippi River through the Rivers and Harbors Act of

1927 (“1927 Act”). 3 According to the plaintiffs, the 1927 Act “authorized the establishment of a

navigable channel 300 feet wide and at least nine feet deep on the Middle Mississippi River[.]”

(Am. Compl. ¶¶ 165-66, ECF 10 (citing the 1927 Act).)

Congress further responded to the 1927 flood with the 1928 Flood Control Act. Pub. L.

No. 70-391, 45 Stat. 534; codified at 33 U.S.C. § 702a. The 1928 Flood Control Act authorized

a system of levees, floodways, spillways, and bank-stabilization measures to mitigate flooding

throughout the Mississippi River Valley, including the Birds Point-New Madrid Floodway,

located south of the confluence of the Ohio and Mississippi Rivers between Birds Point,

Missouri and New Madrid, Missouri.

In 1973, the Mississippi River flooded in the areas where the plaintiffs own land. (Am.

Compl. ¶ 197, ECF 10; Def. Mot. at 8, ECF 36.) The 1973 flood “is documented as having [had]

significant impacts on the morphology of the MMR.” (Def. Mot., Ex. 1 at A-4, ECF 36-1.)

3

Rivers & Harbors Act of Jan. 21, 1927, Pub. L. No. 69-560, 44 Stat. 1010.

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After the 1973 flood, “there were no increasing [river] stage[ 4] trends for within-bank flows at

any of the [river] gages.” 5 (Id.)

Starting in the 1980s and 1990s, the Corps began to shift away from dredging as a means

of navigational maintenance. (Am. Compl. ¶¶ 174-76, ECF 10.) Instead, the Corps developed

new river-training structures, including bendway weirs, which are “[t]otally submerged stone

weirs along the outside of a river bend[.]” (Id. ¶ 179.) The Corps built 40,000 linear feet of

dikes and bendway weirs on the MMR between 1990-93, and as of 2012, “at least 182 bendway

weirs” had been constructed in the same stretch, “with a cumulative length of at least 119,865

linear feet.” (Id. ¶¶ 180-82.) The Corps also built chevron dikes, additional wing dikes, and W-

and S-dikes. (See Def. Mot. at 7, ECF 36; Am. Comp. ¶¶ 183-86, ECF 10.) The Corps built “23

chevron [dikes] in the Middle Mississippi River” between 2003 and 2010. (Am. Compl. ¶ 188,

ECF 10.)

There are currently nearly 1600 river-training structures in the MMR. (Def. Mot., Ex. 5

at Ex. C at 10, ECF 36-5.) The majority of these river-training structures were built in the early

to mid-twentieth century. (Def. Mot. at 7, ECF 10.) Further, 91 percent of these structures were

in place by 2000. (Def. Mot., Ex. 8 at Ex. C, ECF 36-8 at 8; Def. Mot., Ex. 9 at Ex. L at 28, ECF

36-9.) Similarly, more than 82 percent of bendway weirs were already in place by 2000. (Def.

Mot., Ex. 8 at Ex. D, ECF 36-8.)

The LMR has a similar story: 96 percent of river-training structures in that section of the

River had been built by 2000. (Def. Mot., Ex. 9 at Ex. K, ECF 36-9.)

A 2000 U.S. Fish and Wildlife Service publication, “Biological Opinion for the

Operation and Maintenance of the 9-Foot Navigation Chanel on the Upper Mississippi River

System,” noted that changes to the MMR’s natural hydrography had resulted in drier river banks

and reduced water-surface elevations at low-discharge levels. (Plaintiffs’ Response (“Pls.’

Resp.”), Ex. 2 at 63, ECF 37-2.) The opinion also noted that “the number of days water

elevations are above flood stage” had increased. 6 (Id.)

From 2003 to 2011, several news articles covered the Corps’ changes to the Mississippi

River, including river-training structures, and their potential impact on flooding. On July 30,

2003, the St. Louis Post-Dispatch published an article discussing multiple studies “show[ing]

4

The Corps defines “river stage” as “[a] measurement of the depth of water above an arbitrary

reference point in a stream channel.” See Glossary, “Stage”, RIVERGAGES.COM (last accessed

Nov. 12, 2019) http://rivergages.mvr.usace.army.mil/WaterControl/glossary2.cfm.

5

The U.S. Geological Survey uses “gage” instead of “gauge” to describe river conditions. See

Why does the USGS use the spelling "gage" instead of "gauge"?, U.S. GEOLOGICAL SURVEY (last

accessed Nov. 5, 2019) https://www.usgs.gov/faqs/why-does-usgs-use-spelling-gage-instead-

gauge?qt-news science products=0#qt-news science products.

6

Flood stage refers to “[t]he gage height of the lowest bank of the reach in which the gage is

situated. The term ‘lowest bank’ is, however, not to be taken to mean an unusually low place or

break in the natural bank through which the water inundates an unimportant and small area.”

Flood stage, Glossary, U.S. GEOLOGICAL SURVEY (last accessed Nov. 7, 2019)

https://water.usgs.gov/wsc/glossary.html#Floodstage.

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that similar volumes of water are resulting in higher flood levels over time,” while noting that the

Corps has rejected these studies as fundamentally flawed. (Def. Mot., Ex. 16, ECF 36-16.) Two

2008 articles, one in Time and one in Salon, linked increases in the severity and frequency of

flooding, and specifically the 1993 and 2008 floods, to the Corps’ river-training structures. (Def.

Mot., Exs. 17, 18, ECF 36-17, 36-18.) News coverage continued in 2010 with an editorial

published in the St. Louis Post-Dispatch, noting the decades of scientific research linking river

structures to worsened flooding and proposing that an independent review of chevron dikes

should occur before the Corps constructs any additional river-training structures in the MMR.

(Def. Mot., Ex. 20 at 2, 4, ECF 36-20.) In 2011, the Atlantic published an article detailing the

history of flooding on the Mississippi River. (Def. Mot., Ex. 15, ECF 36-15.) The article

connected the 1973 flood to human intervention in the form of river-training structures and

levees. (Id.)

Also in 2011, the Southern Illinoisan published several articles linking river-training

structures to increased Mississippi River flooding. One article linked the magnitude of the 1993

flood to the Corps’ construction of river-training structures on the Mississippi. (Def. Mot., Ex.

19, ECF 36-19.) Another reported that local high school students were researching whether the

Corps’ river-training structures have any impact on flooding in the MMR. (Def. Mot., Exs. 25,

26, ECF 36-25, 36-26.)

In addition to the news coverage, the U.S. Geological Survey issued Circular 1375, titled

“A Brief History and Summary of the Effects of River Engineering and Dams on the Mississippi

River System and Delta” in June 2012. (Pls.’ Resp., Ex. 1, ECF 37-1.) The Circular reviewed

previous studies and concluded that the “extensive system of levees and wing dikes” in the

Mississippi River protect against “intermediate magnitude floods” but have “reduced overall

channel capacity and increased flood stage by up to 4 meters for higher magnitude floods.” (Id.

at 1.) The Circular referenced a study from 1989, that found that sedimentation-induced loss of

storage had increased flood stages at older dams to near pre-dam levels, increasing the number of

flood days. (Id.) The Circular also referenced three different studies from 1975, 2001, and 2006,

that found that “wing dikes, in combination with levees, have reduced overall channel capacity

for intermediate and higher discharges, increasing [flood] stages over time.” (Id. at 1, 18, 36.)

b. Ohio River

In addition to responding to flooding along the Mississippi River, beginning in about

1906, Congress and the Corps endeavored to improve the Ohio River’s navigability. In 1910,

Congress passed the Rivers and Harbors Act, authorizing the Corps to build a nine-foot

navigation channel on the Ohio River from Pittsburgh, Pennsylvania, where the river begins at

the confluence of the Allegheny and the Monongahela Rivers, to Cairo, Illinois, where the Ohio

meets the Mississippi. 7

Neither party has offered evidence of river-training structures on the Ohio River. The

only river manipulation in this case appears to be the flood-control mechanisms on direct and

indirect Mississippi River tributaries. Specifically relevant here, the Corps built the Kentucky

Dam and Reservoir on the Tennessee River in 1945 and the Barkley Dam and Reservoir on the

7

Rivers and Harbors Act of 1910, 61 Cong. Ch. 359, June 23, 1910, 36 Stat. 593.

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Cumberland River in 1966 to respond to the flooding threats in the Mississippi and Ohio Rivers

and their basins. 8 (See Def. Mot., Ex. 3 at Ex. A at VIII-1, II-4, II-1, ECF 36-3.) Together, the

Kentucky and Barkley Dams and Reservoirs have a flood capacity of nearly six million acre-feet.

(Id. at II-5, VIII-1.) The regulation of flows from the Reservoirs has resulted in “significant

lower Ohio flood reduction” and in lower stage readings on the Mississippi River at the Cairo,

Illinois river stage, and on the Ohio River at the Paducah, Kentucky river stage. (Def. Mot., Ex.

3 ¶¶ 3-6, ECF 36-3; id. at Ex. A at Appendix G, X-37-38.)

In 1988 Congress authorized the Olmsted Locks and Dam Project to improve navigation

along the Ohio River. Water Resources Development Act of 1988, Pub. L. No. 100-676, 102

Stat. 4012. The locks were constructed offsite from 1992 to 2004. (Def. Mot., Ex. 4, ECF 36-4.)

During low-water seasons, the Corps set the dam sections in place, so as not to constrict and

redirect the Ohio River using cofferdams. (Def. Mot., Ex. 5, ECF 36-5.) The dam became fully

operational in 2018. (Def. Mot., Ex. 4, ECF 36-4.) The Corps lowers the dam’s wicket gates

during periods of high water flow to facilitate navigation in the Ohio River. (Def. Mot., Ex. 5,

ECF 36-5.)

3. The Plaintiffs’ Claims of Recent Flooding

The plaintiffs allege that their land has been taken by flooding, and that the flooding is

not reflected in the government’s gage data showing that flooding is no worse than in prior years.

The plaintiffs also allege that the government’s gage data was “generic,” and only parcel-specific

data would suffice to counter their allegations. To bolster this argument, the plaintiffs submitted

three declarations, which they assert are “representative” of their case. (See, e.g., Oral Argument

Transcript (“Tr.”) at 60:20, 73:19.) All three declarants allege that their land has experienced

atypical, out-of-season flooding since either 2013 or 2015, although they did not provide

evidence to show that the government’s gage data was incorrect for their properties. (LaFont

Decl. ¶¶ 3-4; Boatwright Decl. ¶¶ 3-4; Davis Decl. ¶¶ 3-4 (Pls.’ Resp., Exs. 3-5, ECF 37-3, 37-4,

37-5).) At oral argument, the plaintiffs explained that atypical flooding is flooding that occurs

outside of historic winter and spring floods, especially during or close to the planting season.

(Tr. 57:1-20.) In the plaintiffs’ view, it is this atypical flooding that amounts to the taking.

The Court closely reviewed the Amended Complaint in an attempt to find facts in the

record to substantiate the plaintiffs’ claims. The Court reviewed the address information that the

plaintiffs supplied, in order to determine the precise location of the plaintiffs’ properties. The

Court was unable to do so for nearly 70% of the plaintiffs. At least 10 plaintiffs did not provide

specific address information at all—only a county or a town listed as “property location” and no

mailing address. Without specific property location information, the Court could not take

judicial notice of “parcel-specific” flooding data, even to the extent that such data exists.

Instead, the Court took judicial notice under Rule 201 of the Federal Rules of Evidence of

the Corps’ daily, monthly, and yearly data on flooding at several gages along the Mississippi and

Ohio Rivers. 9 The Court also took judicial notice of the National Weather Service’s seasonal

8

Both the Tennessee River and the Cumberland River empty into the Ohio River.

9

See, e.g., River Gages, U.S. ARMY CORPS OF ENG’RS (last accessed Nov. 4, 2010)

http://rivergages.mvr.usace.army.mil/WaterControl/yearly tables2.cfm?sid=03611000&from1=0

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rainfall data record at Paducah, Kentucky and Cape Girardeau, Missouri, the only points with

such records near the plaintiffs’ properties. 10

With regard to the Ohio River, the gage data at Paducah, Kentucky shows flooding that

corresponded with record rainfall in spring 2008, spring 2011, winter 2018-19, spring 2019, and

summer 2019. 11 This flood data comports with the broader history of flooding at Paducah,

which has experienced flooding in 37 of the 51 years between 1967 and 2018. (Def. Mot., Ex.

13 at Ex. B, ECF 36-13.)

Similarly, on the Mississippi River, the gage data at Cape Girardeau, Missouri shows

flooding that corresponded with record rainfall in winter 2007-2008, spring 2008, fall 2009,

spring 2011, summer 2015, winter 2018-2019, spring 2019, and summer 2019. Here again, the

flood data comports with the broader history of flooding at Cape Girardeau, which has

experienced flooding in 39 of the 51 years between 1967 and 2018—including several years

(1984, 1993, 2008, 2010 and 2011) when the river was flooded for more than 100 days. (Def.

Mot., Ex. 14 at Exs. A, H, ECF 36-14.)

4. Plaintiffs’ Theory of Causation

The plaintiffs allege that the Corps’ river-training structures have caused increased

flooding and raised surface-water elevations. The plaintiffs allege further that the numerous

river-training structures have “altered natural hydrograph of the Middle Mississippi River by

contributing to higher [water-surface elevations] at lower discharges than in the past and to a

downward trend in annual minimum stages.” (Am. Compl. ¶ 203.)

The plaintiffs do not attempt to pinpoint when the river structures in the Mississippi or

Ohio Rivers became sufficiently numerous or of a type to cause atypical flooding. Instead, they

allege that the impact of river-training structures on water levels has been cumulative. (Id. ¶

204.) They contend that the newer structures used by the Corps since the 1980s (in particular the

bendway weir) “contribute even more substantially to rising water surface elevations and

flooding than their predecessors.” (Pls.’ Resp. at 3, ECF 37.) The plaintiffs also contend that the

1/01/2007&to1=12/31/2019&dt=S&param=HG (river gage data, beginning in 2008 for Paducah,

KY on the Ohio River); River Gages, U.S. ARMY CORPS OF ENG’RS (last accessed Nov. 4, 2010)

http://rivergages.mvr.usace.army.mil/WaterControl/yearly_tables2.cfm?sid=CE401278&from1=

01/01/2007&to1=12/31/2019&dt=S&param=HG (river gage data, beginning in 2007 for Cape

Girardeau, MO on the Mississippi River).

10

Climate Records – Paducah, KY – Seasonal Top 10 Lists, NAT’L WEATHER SERV. (last

accessed Nov. 5, 2019) https://www.weather.gov/pah/PaducahSeasonalRecords; Climate

Records – Cape Girardeau, MO – Seasonal Top 10 Lists, NAT’L WEATHER SERV. (last accessed

Nov. 5, 2019) https://www.weather.gov/pah/CapeGirardeauSeasonalRecords.

11

The National Weather Service records define spring as March through May, summer as June

through August, fall as September through November, and winter as December through

February. See Climate Records – Paducah, KY – Seasonal Top 10 Lists, NAT’L WEATHER SERV.

(last accessed Nov. 5, 2019) https://www.weather.gov/pah/PaducahSeasonalRecords; Climate

Records – Cape Girardeau, MO – Seasonal Top 10 Lists, NAT’L WEATHER SERV. (last accessed

Nov. 5, 2019) https://www.weather.gov/pah/CapeGirardeauSeasonalRecords.

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mean local stage 12 of the river has been progressively increasing as a result of the Corps' addition

of new structures over time. (Id. at 4.)

There has been public and academic discussion of the theory that river-training structures

are responsible for the severity of the flooding on the Mississippi River since at least the mid-

1970s, following the 1973 flood. (See Def. Mot. at 8 (citing Michael A. Stevens et al., Man-

Induced Changes of Middle Mississippi River, 101 J. OF THE WATERWAYS, HARBORS & COSTAL

ENG’G DIV. 119-33 (1975); C.B. Belt Jr., The 1973 Flood and Man’s Constriction of the

Mississippi River, 189 SCI. 681-84 (1975)).) The Corps, together with University of Missouri

researchers, “reviewed and rebutted” the theory about river-training structures. (Id. (citing

Glendon T. Stevens, Discussion of “Man-induced Changes of Middle Mississippi River,” 102 J.

OF THE WATERWAYS, HARBORS & COSTAL ENG’G DIV. Issue 2, 280 (1976); Gary R. Dyhouse,

Discussion of “Man-induced changes of Middle Mississippi River,” 102 J. OF THE WATERWAYS,

HARBORS & COASTAL ENG’G DIV. Issue 2, 277-79 (1976); Claude N. Strauser & Norbert C.

Long, Discussion of “Man-induced changes of Middle Mississippi River,” 102 J. OF THE

WATERWAYS, HARBORS & COSTAL ENG’G DIV. Issue 2, 281-82 (1976); Jerome A. Westphal &

Paul R. Munger, Discussion of “Man-induced changes of Middle Mississippi River,” 102 J. OF

THE WATERWAYS, HARBORS & COSTAL ENG’G DIV. Issue 2, 283-84).)

The media in the plaintiffs’ local area have also covered the theory that river-training

structures have caused an increase in severe flooding. Dr. Nicholas Pinter, a professor at

Southern Illinois University (“SIU”), was quoted in a June 2008 Time article, opining that recent

floods in the MMR were caused by river-training structures whose use had significantly

increased water levels. (Def. Mot., Ex. 17, at 2-4, ECF 36-17.) The editorial board of “St. Louis

Today” in an August 2010 column recommended that before the Corps built any more structures,

an independent review should be conducted by the National Academy of Sciences in light of

“[t]wo decades of peer-reviewed scientific research” showing that river-training structures

“worsen flooding.” (Id. Ex. 20 at 3 ECF 36-20.) An August 2011 article in the St. Louis Post-

Dispatch describes the effort of three professors from SIU and Washington University in St.

Louis, starting in 2008, to expose “what they consider to be a major threat to the St. Louis-Metro

East Mississippi River corridor, which also includes communities farther down the river to

Cairo[, Illinois].” (Id., Ex. 19, ECF 36-19.) That threat was “the construction of river

structures,” that, they wrote, “exacerbate[d] flooding” and “contributed to the unprecedented

levels of the 1993 flood.” (Id.) That article quoted Dr. Pinter, who claimed that “[t]he problem

in particular for Southern Illinois is our stretch of the river is the most densely wing-diked of any

river in the world, that I've been able to find[.]” (Id. at 7.) He noted that “flood levels have

increased enormously . . . . At its worst spot, 17 feet higher for the same storm upstream than a

flood would have been in the mid-19th century.” (Id. at 7.)

In 2014, environmental groups brought a lawsuit challenging several Corps

environmental assessments that had concluded that river-training structures did not significantly

affect water-surface elevations in the MMR. See generally Nat’l Wildlife Fed’n v. U.S. Army

Corps of Eng’rs, No. 14-590-DRH-DGW, 2014 WL 6685235 (S.D. Ill. Nov. 25, 2014).

12

Mean local stage refers to the average “measurement of the depth of water above an arbitrary

reference point in a stream channel” for a specific location. See Glossary, “Stage”

http://rivergages.mvr.usace.army.mil/WaterControl/glossary2.cfm (last accessed Oct. 23, 2019).

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Following the court’s denial of the plaintiffs’ motion for a preliminary injunction to stop the

Corps from placing new river-training structures in the Middle Mississippi River, the plaintiffs

voluntarily dismissed their suit. Nat’l Wildlife Fed’n, 2014 WL 6685235, at *12.

C. Procedural Background

On July 26, 2018, the plaintiffs filed this inverse condemnation action against the United

States. (Compl. ¶ 1, ECF 1.) The United States moved to dismiss the complaint, arguing that the

plaintiffs’ claims were time-barred under RCFC 12 (b)(1) because the plaintiffs had alleged a

taking for the previous ten years, and failed to state a claim under RCFC 12(b)(6). (Def. Mot.,

ECF 9.). The plaintiffs then amended their complaint on December 17, 2018, to remove

references to flooding over the previous ten years. (Am. Compl., ECF 10.) The government

renewed its motion to dismiss (ECF 17). After the plaintiffs identified clerical errors in mean-

stage data in declarations supporting the government’s renewed motion, the Court permitted the

government to refile its renewed motion to dismiss (ECF 28). The case was transferred to this

judge in June 2019 (ECF 34). The government corrected the errors in its motion to dismiss in a

renewed motion (ECF 36), to which the plaintiffs responded (ECF 37). The motion to dismiss is

fully briefed, and the Court heard oral argument on October 22, 2019, in Paducah, Kentucky.

II. JURISDICTION AND STANDARD OF REVIEW

The Tucker Act, 28 U.S.C. § 1491, provides this Court with jurisdiction to hear suits for

compensation under the fifth amendment’s Takings Clause. Boling v. United States, 220 F.3d

1365, 1370 (Fed. Cir. 2000). Such suits must be brought within six years of the claim’s accrual

for this Court to have jurisdiction. 28 U.S.C. § 2501; John R. Sand & Gravel Co. v. United

States, 457 F.3d 1345, 1354 (Fed. Cir. 2006).

The government has moved to dismiss the Amended Complaint for lack of subject-matter

jurisdiction under RCFC 12(b)(1). In such cases, to determine whether subject-matter

jurisdiction exists, the Court accepts “as true all undisputed facts asserted in the plaintiff's

complaint and draw[s] all reasonable inferences in favor of the plaintiff.” Trusted Integration,

Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). When a plaintiff’s jurisdictional

facts are challenged, however, only those factual allegations that the government does not

controvert are accepted as true. Shoshone Indian Tribe of Wind River Reservation, Wyo. v.

United States, 672 F.3d 1021, 1030 (Fed. Cir. 2012). In evaluating such a challenge, the court is

not “restricted to the face of the pleadings” in resolving disputed jurisdictional facts. The court

may review evidence outside the pleadings. Id. If the court finds that it lacks subject-matter

jurisdiction over a claim, RCFC 12(h)(3) requires the court to dismiss that claim.

Takings claims accrue “‘only when all the events which fix the government’s alleged

liability have occurred and the plaintiff was or should have been aware of their existence.’”

Casitas Mun. Water Dist. v. United States, 708 F.3d 1340, 1359 (Fed. Cir. 2013) (emphasis

original) (quoting Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed.

Cir. 1988)). “The act that causes the accrual of a physical taking claim is the act that constitutes

the taking.” Id. (citing Ingrum v. United States, 560 F.3d 1311, 1314 (Fed. Cir. 2009)). Thus,

when a permanent taking is alleged, “the key date for accrual purposes is the date on which the

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plaintiff's land has been clearly and permanently taken.” Boling, 220 F.3d at 1370 (citing

Seldovia Native Assoc., Inc. v. United States, 144 F.3d 769, 774 (Fed. Cir. 1998)).

The government has also moved to dismiss for failure to state a claim under RCFC

12(b)(6). In evaluating a motion to dismiss for failure to state a claim, the court must accept as

true a complaint’s well-pleaded factual allegations and construe them in the most favorable

manner to the plaintiff. Ashcroft v. Iqbal, 566 U.S. 662, 668 (2009). The court must draw all

reasonable inferences in favor of the non-moving party. Sommers Oil Co. v. United States, 241

F.3d 1375, 1378 (Fed Cir. 2001).

To avoid dismissal, a complaint must allege facts “plausibly suggesting (not merely

consistent with)” a showing that the plaintiff is entitled to the relief sought. Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 558 (2007). “The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).

III. DISCUSSION

A. Subject-Matter Jurisdiction

The government’s Motion to Dismiss under RCFC 12(b)(1) turns on whether the

plaintiffs knew or should have known that their land was taken by flooding allegedly caused by

the defendant before July 2012. The government argues that the plaintiffs knew or should have

known before July 26, 2012 (six years before they filed suit) that: 1) the Corps had already built

hundreds of river-training structures in the Mississippi River, which do not affect the Ohio River

upstream, and the Corps had already built dams on the Ohio River; 2) the areas surrounding the

Mississippi and Ohio Rivers have long been subject to flooding of the same or a similar

magnitude and duration; and 3) the plaintiffs knew or should have known about their theory that

the river-training structures and Olmsted Dam were responsible for the increase in water-surface

elevations.

The plaintiffs allege that their property was permanently taken through recurrent and

atypical flooding that was a direct and foreseeable result of the government’s action—the Corps’

construction of river-training structures and the Olmsted Dam. The plaintiffs allege that their

cause of action for a permanent taking accrued “no sooner than 2015,” because that was the first

year that it was apparent that the cumulative impact of the Corps’ river-training structures and

dams had caused the plaintiffs’ land to be permanently taken, rather than only occasionally

inundated, by flooding.

The plaintiffs also argue that their case is preserved under the stabilization doctrine

because the Corps has continued to build additional river-training structures in the Mississippi

River, and their cumulative impacts have increased water-surface elevations and worsened

flooding in the Mississippi and Ohio Rivers, and the construction of the Olmsted Dam on the

Ohio River have increased water-surface elevations and worsened flooding there. 13 The

13

The plaintiffs’ argument as to the Olmsted Dam was not clear until oral argument. (See Tr. at

68:11-22.) On its face, the plaintiffs’ Amended Complaint does not adequately raise the claim,

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plaintiffs argue that the effects of these river-training structures and the Olmsted Dam did not

stabilize and accrue until 2015, so it could not have been clear that “the land had become

appropriated for public use” until at least that time, United States v. Dow, 357 U.S. 17, 27

(1958), and therefore their claims are timely.

Both parties set forth evidence of the history of flooding, and the plaintiffs’ offered

declarations from three plaintiffs alleging that the nature of flooding changed in 2015. None of

the evidence before the Court, however, refers to the plaintiffs’ individual properties. The

plaintiffs argue that the government was required to put forth parcel-specific evidence

controverting the plaintiffs’ allegations of flooding, but the government could scarcely do so

when the locations of most of the plaintiffs’ properties were not specifically identified in the

Complaint or Amended Complaint. While the plaintiffs’ allegation that their properties

experienced atypical flooding starting in 2015 was not controverted, the Court acknowledges that

the government could not controvert that specific allegation without more information about the

location of the plaintiffs’ properties. It is unfair to disadvantage the plaintiffs by dismissing their

claims due to the opaque Amended Complaint. The Court finds that additional facts from the

plaintiffs and further development of the record will assist in resolving the question of the

timeliness of the claims.

The determination of whether the plaintiffs’ claims have already accrued or stabilized is a

fact-intensive one. The Court will not resolve these issues on the current record, when it lacks

parcel-specific information from both parties. Considering this record, the Court elects to

exercise its discretion under RCFC 12(i) to defer consideration of the government’s motion to

dismiss for lack of subject-matter jurisdiction until trial, when it can make more “detailed

findings of fact.” 14 Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23, 29 (2012).

The government points to the allegation in the plaintiffs’ original Complaint that the

plaintiffs had endured flooding for nine to 10 of the previous 10 years as evidence that the

plaintiffs have acknowledged that their claims come too late under the six-year statute of

limitations. The plaintiffs’ own allegations, since eliminated but not otherwise withdrawn, put

the plaintiffs in a difficult posture, but the Court is not prepared at this early stage of the case to

reject the entire case and the claims of all the plaintiffs due to this early admission.

Finally, this case is very different from Jackson-Greenly Farm, Inc. v. United States, 144

Fed. Cl. 610 (2019). In that case, the plaintiffs challenged the Corps’ decision not to rebuild a

single failed levy, which they alleged resulted in a taking by flooding, id. at 618, whereas the

plaintiffs here challenge multiple Corps actions over decades in a broader area that encompasses

at least two rivers. The Amended Complaint here suffers from many of the same defects noted

in Jackson-Greenly Farm, but because it presents more complexity with a greater variety of facts

and variables, the Court finds it better to allow for further development of the record.

but the Court will consider the claim for purposes of the statute of limitations as if it had been

properly alleged.

14

RCFC 12(i) provides, in pertinent part, that “any defense listed in RCFC 12(b)(1)-(7)—

whether made in a pleading or by motion— . . . must be heard and decided before trial unless the

court orders a deferral until trial.” RCFC 12(i) (emphasis added).

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B. Claim Sufficiency

The government argues that the plaintiffs fail to state a claim because they do not identify

the “precise action” that gives rise to a taking and allege a tort instead of a taking. (Def. Mot. at

28, 30, ECF 36.) The Court disagrees.

To prevail in a takings claim, a plaintiff must show (1) “a valid property interest at the

time of the taking[,]” such as an ownership or leasehold interest, Wyatt v. United States, 271 F.3d

1090, 1096 (Fed. Cir. 2001), and (2) a government “physical invasion or appropriation of private

property” that amounted to a compensable taking. See, e.g., Huntleigh USA Corp., 525 F.3d at

1378-79. When plaintiffs have alleged a “nonfrivolous takings claim founded upon the Fifth

Amendment, jurisdiction under the Tucker Act is proper.” Moden v. United States, 404 F.3d

1335, 1341 (Fed. Cir. 2005). The remaining question, then, is whether plaintiffs’ complaint

“contain[s] sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’”

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

The plaintiffs here met the standard for notice pleading to survive a motion to dismiss.

The plaintiffs have alleged that they have property interests in land. They also allege that the

cumulative effect of the government’s river-training structures and dams caused flooding to their

properties, which constituted a physical invasion of private property. If these allegations are

true, the plaintiffs state a claim upon which relief could be granted. To the extent that the

government disagrees with the plaintiffs’ allegations, the dispute presents a merits issue thar the

government can elucidate in a motion for summary judgment when both parties have provided

greater clarity and specificity with respect to each plaintiff. 15

The government’s motion to dismiss for failure to state a claim is denied.

15

The Court notes that at least some of the plaintiffs are unlikely to prevail. For example, one

plaintiff apparently owns property near the Tennessee River, about which no allegations have

been made. In addition, as noted above at note 13, the plaintiffs’ claims regarding the Olmsted

Dam are not well-pleaded, putting at risk the claims of the plaintiffs regarding flooding from the

Ohio River. The claims of the plaintiffs along the Mississippi River are at risk in light of the

plaintiffs’ concession at oral argument that the river-training structures in the MMR would have

impacts upstream, but not downstream. (Tr. 68:16-22, 70:17-22.) All of these issues are best

resolved after further, parcel-specific factual development. The Court will address these specific

plaintiffs either on a summary judgment motion or when greater fact-development allows a

decision on the government’s motion to dismiss under the statute of limitations.

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IV. CONCLUSION

For the reasons stated, resolution of the government’s motion to dismiss under RCFC

12(b)(1) is DEFERRED until trial pursuant to RCFC 12(i), and the government’s motion to

dismiss under 12(b)(6) is DENIED. The Court will schedule a status conference to discuss a

schedule for the case moving forward.

It is so ORDERED.

s/ Richard A. Hertling

Richard A. Hertling

Judge

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