Biloxi Marsh Lands Corporation v. United States

In the United States Court of Federal Claims

No. 12-382

(Filed: 19 January 2021)

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BILOXI MARSH LANDS *

CORPORATION, et al., *

* Motion for Summary Judgment; Cross-

Plaintiff, * Motion for Summary Judgment; Statute

* of Limitations; Fifth Amendment Taking;

v. * Stabilization Doctrine; Justifiable

* Uncertainty; Erosion.

THE UNITED STATES, *

*

Defendant. *

*

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Camilo K. Salas, III, Salas & Co., L.C., of New Orleans, LA, for plaintiff.

Joshua P. Wilson, Trial Attorney, with whom were Elizabeth McGurk, Trial Attorney,

and Jean E. Williams, Deputy Assistant Attorney General, Environment & Natural Resources

Division, Natural Resources Section, Civil Division, Department of Justice, all of Washington,

DC.

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”) (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. The government filed its motion for summary judgment on 28 September 2018,

arguing plaintiffs’ takings claims are barred by a six-year statute of limitations. Plaintiffs filed a

response to the government’s motion for summary judgment on 7 January 2019 and filed a cross-

motion for partial summary judgment on the same issue 8 January 2019. This case was

reassigned to the undersigned Judge on 29 July 2019. The Court conducted a site visit of the

alleged takings and the parties presented evidence relating to the physical characteristics of the

sites on 3 and 4 March 2020. On 21 April 2020, the Court held a status conference and directed

plaintiffs to file supplemental papers listing various items in the record relating to subcategories

of the allegedly taken land. Plaintiffs provided their list of facts in the record relating to each

subcategory of land on 15 June 2020, and the government filed a response to plaintiffs’ list on 22

June 2020. The Court held oral argument on the cross-motions for summary judgment on 29

June 2020. Plaintiffs submitted an additional supplemental paper on the evidence in the record

affecting a justifiable uncertainty analysis on 31 July 2020, and the government filed a

supplemental paper in response on 25 August 2020. 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 summary judgment.

I. Factual History1

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 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

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All facts in this section are undisputed, unless stated otherwise. See RCFC 56(a) (requiring a movant for summary

judgment to show “there is no genuine dispute as to any material fact.”). The Court draws all inferences “in the light

most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 587–88 (1986).

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“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., 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

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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 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

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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 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.”

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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.

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

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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 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

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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; (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.

II. Procedural Background

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., ECF

No. 1. The government filed a motion to dismiss on 31 August 2012. See United States’ Mot. to

Dismiss for Lack of Subject Matter Jurisdiction and Support Mem., ECF No. 9 (“Gov.’s Mot. to

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Dismiss”). Plaintiffs filed a response in opposition to the motion to dismiss on 2 November

2012, and the government filed a reply in support of its motion to dismiss on 30 November 2012.

See Pls.’ Resp. to Mot. to Dismiss; Reply Mem. of Law in Support of the U.S.’ Mot. to Dismiss

the Compl. for Lack of Jurisdiction, ECF No. 17. On 24 June 2013, the then undersigned 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 and Opinion, ECF No.

18 at 3.

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 on 22 July 2015

and was further consolidated with Terre Aux Boeufs Land Co., Inc. v. United States on 30

January 2018. See Order, ECF No. 59; Order Consolidating Related Matters, Granting-in-Part

the Gov.’s Mot. to Vacate, and Pre-Trial Scheduling Order, ECF No. 91. The government filed

its motion for summary judgment on 28 September 2018, arguing plaintiffs’ takings claims are

barred by a six-year statute of limitations and the court therefore lacks subject matter jurisdiction

to consider them. See Gov’t Mot. for Summ. J. Plaintiffs filed their response to the

government’s motion for summary judgment on 7 January 2019 and their cross-motion for

partial summary judgment on 8 January 2019. See Pls.’ 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.’ Mot. for Summary Judgment on the Same Issue, ECF No. 104; Pls.’ Mot. for

Summary Judgment on the Issue of the Timeliness of the Pls.’ Takings Claims, ECF No. 105.

Plaintiffs corrected their response to the government’s motion for summary judgment and their

cross-motion for partial summary judgment on 12 February 2019. See Pls.’ Mot. for Partial

Summ. J. The government filed a reply in support of its motion for summary judgment and

response to plaintiffs’ cross-motion for summary judgment on 16 April 2019. See U.S.’ Reply.

Mem. in Supp. of its Mot. for Summary Judgment and Resp. to Pls.’ Cross-Mot. for Summary

Judgment, ECF No. 132 (“Gov.’s Reply”). Plaintiffs filed a reply brief in support of its cross-

motion for partial summary judgment on 29 May 2019. See Pls.’ Reply Br. Opp’n.

On 29 July 2019, this case was reassigned to the undersigned Judge. See Order, ECF No.

136. The Court scheduled a site visit and oral argument on the parties’ cross-motions for

summary judgment in New Orleans, Louisiana. See Order, ECF No. 147. The Court conducted

a visit of the sites of the alleged takings on 3 March and 4 March 2020. Id. An emergency

involving inclement weather prevented the Court from hearing oral argument on the cross-

motions for summary judgment on 5 March 2020. On 21 April 2020, the Court held a telephonic

status conference in this matter and, pursuant to agreement during the conference, directed

plaintiffs’ counsel to “submit a list of details in the record which correspond to each of the

divisions of property as plaintiffs’ arguments allege in pleadings and exhibits.” Order, ECF No.

152. Plaintiffs filed their “list of details thus far found in the record” on 15 June 2020, and the

government filed a response to plaintiffs’ “list of details thus far found in the record” on 22 June

2020. See Pls.’ List of Details Found in the Record that Correspond to Each of the General

Geographic Divisions of Properties Adopted for Purposes of Oral Argument, ECF No. 157

(“Pls.’ Paper”); U.S.’ Response to Pls.’ List of Record Details Corresponding to the Parties’

Agreed General Geographic Divisions, ECF No. 158. The Court held oral argument on the

cross-motions for summary judgment in Washington, DC, on 29 June 2020. See Order, ECF No.

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159. As agreed to by all counsel during the 29 June oral argument, the Court ordered both

parties to submit additional supplemental papers “containing description[s] of items in the

summary judgment record currently before the Court that apply to a ‘justifiable uncertainty’

analysis corresponding to each of the agreed subunits.” Order, ECF No. 160. Plaintiffs filed

their supplemental paper on 31 July 2020, and the government filed its supplemental paper on 25

August 2020. See Pls.’ Supp. Paper; U.S.’ Response to Pls.’ “List of Citations and Excerpts”

(ECF 165) and Memorandum (ECF 166) Regarding Pls.’ “Justifiable Uncertainty” Argument,

ECF No. 167 (“Gov.’s Resp. to Pls.’ Supp. Paper”).

III. 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).

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).

“A grant of summary judgment is appropriate when the pleadings, affidavits and

evidentiary materials filed in a case reveal that ‘there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.’” Lippmann v. United States, 127

Fed. Cl. 238, 244 (2016) (citing RCFC 56(a)). A “genuine” dispute occurs when “the evidence

is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” when it could “affect the

outcome of the suit under the governing law.” Id. The Court draws all inferences “in the light

most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 587–88 (1986). These “standard[s] also appl[y] when the Court

considers cross-motions for summary judgment.” Lippmann, 127 Fed. Cl. at 244.

IV. Parties’ Arguments

In support of its motion for summary judgment, the government argues: (1) plaintiffs’

takings claims are based upon effects of the MRGO which have been well documented since the

1960s and plaintiffs “knew or should have been aware of the facts that underline its claim since

at least the 1980s,” making its claims barred by the six year statute of limitations; (2) the

government “never promised, or undertook any action to restore Plaintiffs’ land to its pre-MRGO

condition” and continuously operated it “in precisely the same activities—i.e., maintaining,

operating, and dredging the MRGO—that Plaintiffs contend cause[d] the alleged taking of their

property”; and (3) “information and data available to Plaintiffs during [the] 1970’s and 1980’s

was sufficient to allow Plaintiffs to understand and pursue a takings claim,” but plaintiffs could

have filed their claims as late as 2005 when similar plaintiffs filed claims in St. Bernard Parish

Government v. United States, 887 F. 3d 1354 (Fed. Cir. 2018), alleging “the MRGO caused

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erosion and habitat change on the wetlands surrounding the MRGO . . . [and] that those

environmental changes exacerbated storm surge during Hurricane Katrina, which, in turn, caused

the levees to overtop, and led to flooding on their properties.” See Gov. Mot. for Summ. J. at

26–43.

Plaintiffs argue in response: (1) plaintiffs’ takings claims did not accrue in the 1980s

because plaintiffs allege a gradual takings claim, which “does not reach a stabilized condition,

and hence . . . has not accrued, if the property owner has ‘justifiable uncertainty’ about whether

his or her loss is permanent or reversible,” and here, plaintiffs’ claims have not stabilized as the

MRGO’s effects are continuing and ongoing; (2) the “Corps of Engineers and other federal

agencies have for many years undertaken enormous projects to mitigate” damage caused by the

MRGO and “[t]hese mitigation efforts created uncertainty about the fate of plaintiffs’ properties

and thereby delayed the running of the [statute of limitations]”; (3) the government itself did not

know in the 1980s “what was the cause or extent of the erosion around the MRGO[;] [therefore,]

. . . the House of Representatives requested in 1982 that the Corps prepare a report providing

information about the cause of the erosion. The Corps did not complete the report until . . .

1988.” This report “recommended . . . additional studies be made . . . [which] were re-started in

1992 and a new report . . . issued in 1994”; (4) “[t]he government has mitigated the effects of the

MRGO through marsh creation and foreshore protection since at least 1980[,] . . . [and t]he

government has issued many reports regarding the effects of the MRGO, but has never stated

that the damage was irreversible”; and (5) in St. Bernard, “the Court held that the MRGO did not

stabilize until its closing in 2009, which is the same position plaintiffs take her [sic],” therefore

making their claims timely. Pls.’ Mot. for Partial Summ. J. at 40–56 (emphasis in original).

After oral argument on the parties’ cross-motions for summary judgment, the Court

ordered the parties to submit supplemental papers containing a list of citations in the summary

judgment record detailing proposed or completed projects applying a “justifiable uncertainty”

analysis to each of the agreed geographical subunits. See Order, ECF No. 160. On 31 July 2020,

plaintiffs submitted their supplemental paper, arguing: (1) “Subunit 13 was directly and

indirectly impacted by the MRGO”; (2) “Subunit[] 21 . . . [was] indirectly impacted by the

MRGO through the placement of spoil material and hydrologic changes”; (3) “Subunit 06 is

adjacent to the Lake Borgne ecosystem and the offshore portion of the MRGO was dredged in

the vicinity [sic]”; (4) “Subunits 07 and 18 were directly and indirectly impacted by the MRGO”;

(5) “Subunit 32 was directly affected by the dredging and placement of material during

construction of the channel”; and (6) “Subunit 40 was directly and indirectly impacted by the

MRGO.” Pls.’ Supp. Paper at 1–2.

On 25 August 2020, the government filed its reply to plaintiffs’ supplemental paper,

arguing “[p]laintiffs’ further citations to the record do not support their argument that [p]laintiffs

were ‘justified’ in delaying their takings claims” because “[p]laintiffs continue to rely upon a

scattershot of local, state, and federal projects proposed at various times, for various reasons and

with varying results over the course of 60 years.” See Gov.’s Resp. to Pls.’ Supp. Paper.

Specifically, the government claims “[m]any of these proposals were never implemented and

most were unrelated to any genuine effort to remediate the specific physical changes to property

underlying [p]laintiffs’ taking claims.” Id.

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V. Applicable Law

“A claim under the Tucker Act, including takings claims, ‘first accrues 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 Mut. Water Dist., 708 F.3d at 1359 (citing

Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988)

(emphasis in original)). “[T]he key date for accrual purposes is the date on which the plaintiff’s

land has been clearly and permanently taken.” Boling v. United States, 220 F.3d 1365, 1370

(Fed. Cir. 2000). “However, in cases where the government leaves the taking of property to a

gradual physical process, rather than utilizing the traditional condemnation procedure,

determining the exact moment of claim accrual is difficult.” Id. When a taking occurs through

gradual processes, two applicable doctrines assist in determining when the statute of limitations

begins to run: stabilization and justifiable uncertainty. See United States v. Dickinson, 331 U.S.

745, 749 (1947) (explaining the accrual of a claim through gradual processes is delayed until the

taking has “stabilized”); see also Applegate v. United States, 25 F.3d 1579, 1583 (Fed. Cir. 1994)

(discussing how government promises to restore land keep landowners “justifiably uncertain

about the permanency of the erosion and the taking”).

A. Stabilization Doctrine

The Supreme Court first addressed the relationship between an alleged taking through

intermittent flooding and the stabilization doctrine in United States v. Dickinson, 331 U.S. at

746–47. In Dickenson, the alleged taking related to the government’s construction of a dam and

the subsequent permanent flooding of nearby landowners’ property stemming from the rise in

water levels. Id. at 746. To determine when the statute of limitations on a takings claim began

to run, the Court defined a taking in the context of the Just Compensation Clause, stating

“[p]roperty is taken in the constitutional sense when inroads are made upon an owner’s use of it

to an extent that, as between private parties, a servitude has been acquired either by agreement in

course of time.” Id. at 748. Acknowledging the difficulties facing a property owner in

“determining the decisive moment in the process of acquisition by the United States” of property

through a gradual taking process, the Court focused on the principles of fairness under the Fifth

Amendment by specifically noting the Fifth Amendment does not operate as “a technical rule of

procedure” regarding causes of action. See id. at 748 (“The Fifth Amendment expresses a

principle of fairness and not a technical rule of procedure enshrining old or new niceties

regarding ‘causes of action’—when they are born, whether they proliferate, and when they

die.”); see also Etchegoinberry v. United States, 114 Fed. Cl. 437, 498 (2013) (“This court has,

likewise, underscored the Supreme Court’s mandate in [Dickinson] that taking claims be

enforced with an eye towards fairness.”) (internal citation omitted). Instead, the Court held, in

cases of gradual taking, accrual of a claim for the purposes of triggering the statute of limitations

is delayed until the taking has “stabilized” such that the “consequences of the inundation have so

manifested themselves that a final account may be struck.” Id. at 749.

The Supreme Court later clarified the “expressly limited holding” of Dickinson in United

States v. Dow, stating: “the statute of limitations did not bar an action under the Tucker Act for a

taking by flooding when it was uncertain at what stage in the flooding operation the land had

become appropriated for a public use.” 357 U.S. 17, 27 (1958). In Dow, the Court was

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presented with the issue of whether the taking occurred at the time of filing of a declaration of

taking or when the government took possession. Id. at 24. In holding a taking occurs at the time

the government takes possession, the Court explained “[b]ecause of the uncertainty when, if

ever, a declaration would be filed after the Government’s entry, manipulations might be

encouraged which could operate to the disadvantage of either the landowner or the United

States.” Id. at 25. Distinguishing the case from Dickinson, the Court explained “there is no

dispute over the fact that the United States appropriated Parcel 1 on the date it entered into

physical possession under order of the District Court,” as compared to Dickinson, where “it was

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

use.” Id. at 27; see also Etchegoinberry, 114 Fed. Cl. at 498 (“[D]efendant’s inability to pinpoint

a single accrual date, and defendant’s reliance on an entire decade as the time when plaintiff

allegedly should have known that its claim had accrued, supports a conclusion that

landowners . . . were justifiably uncertain about the permanent nature of the damage to their

lands.”).

The point at which a taking becomes “sufficiently certain to give rise to a claim for

compensation varies in each case.” Cooper v. United States, 827 F.2d 762, 764 (Fed. Cir. 1987).

If an alleged takings claim stabilized more than six years prior to plaintiff filing suit, recovery for

any damage from the taking is barred under the statute of limitations rather than only the damage

which occurred more than six years prior. Boling, 220 F.3d at 1373 (rejecting plaintiffs’

assertion the six-year statute of limitations bar as applied to a takings claim “should be limited to

exclude only damage that occurred greater than six years prior to the filing of the claim”).

B. Justifiable Uncertainty Doctrine

The Federal Circuit applies the holdings of Dickerson and Dow to toll the statute of

limitations when government promises or actions to mitigate the damages stemming from the

takings claim create adequate uncertainty to delay the filing of landowner claims. In Applegate,

the Federal Circuit applied the statute of limitations bar 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 Applegate, the Corps constructed a deep-water harbor. Id. at 1580. “To

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. 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

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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). This justifiable uncertainty on the part of the landowners in turn

tolled the statute of limitations as to plaintiffs’ takings claims. Id. at 1584.

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 explains 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.

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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

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.

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VI. Analysis of Category One – Central Wetlands

The Central Wetlands corresponds to geographical “Subunit 13” of Exhibit 1 contained in

the 2012 Mississippi River Gulf Outlet (MRGO) Ecosystem Restoration Plan, Final Feasibility

Report. Gov. Mot. for Summ. J., Ex. 35 (U.S. Army Corps of Engineers, Mississippi River Gulf

Outlet (MRGO) Ecosystem Restoration Plan: Final Feasibility Report (June 2012)) (“2012

Feasibility Report”) at 2-58.

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Subunit 13 includes the Livaudais,2 Vincent Marshlands,3 Borgnemouth,4 and Lake

Eugenie properties.5 See Corrected Joint Status Report, ECF No. 154 (“JSR”). The Central

Wetlands “is approximately 30,000 acres and is bordered on the west and south by the populated

settlements of Lower Ninth Ward, Chalmette, Meraux, Violet, and St. Bernard.” Gov. Mot. for

Summ. J., Ex. 7at 1 (Land and Forest Area Changes in the Vicinity of the Mississippi River Gulf

Outlet; Central Wetlands Region, 1935-2010). “Physically, the [Central Wetlands] is bounded

by the MRGO on the east, the Gulf Intracoastal Waterway (GIWW) on the north, the back flood

protection levees of the Mississippi River on the west, and the back flood protection levees of the

St. Bernard Ridge on the south.” Id. The Central Wetlands is distinct from the MRGO Spoil

Bank, subunit 32 on the 2012 Feasibility Report and Category 3 of the Court’s Analysis, which

separates the Central Wetlands from the MRGO channel itself. See infra.

A. Stabilization Doctrine

Plaintiffs’ alleged takings theory in the Central Wetlands is premised on saltwater

intrusion permeating from the MRGO, rather than any direct erosion on the banks of the MRGO:

[S]altwater intrusion kills the natural vegetation of the marsh and the roots of these

dead plants can no longer hold the soil together along the MRGO channel

banks. . . . This process has caused erosion of plaintiffs’ lands.

Am. Compl. at ¶ 31. Application of the stabilization doctrine requires the Court to first

determine when erosion made such “substantial encroachment” to make plaintiffs aware of the

permanency of the alleged taking. Boling v. United States, 220 F.3d 1365, 1372 (Fed. Cir.

2000). In considering when a landowner should be aware of “substantial encroachment,” the

Court is to consider “the uncertainties of the terrain, the difficulty in determining the location of

the government’s easement, and the irregular process of erosion.” Id. at 1373.

2

The Livaudais properties “consist of three unconnected parcels of land in the northwestern corner of the MRGO,”

Parcel A, Parcel B, and Parcel C. 2017 Mendelssohn Report at 36. “Parcel A, the northwesterly parcel, is a narrow

but long 109 ac. rectangle with organic solid of the Lafitte soil series, typical of brackish marshes, within the marsh

proper, and mineral dredged soils . . . in the MRGO dredge habitat . . . and [is] contiguous with the Jackson

Protection Levee.” Id. at 36–37. “Parcel B, . . . [is] adjacent to the Mississippi River levee fastlands, is much wider

than Parcel A, but shorter and consists of 312 ac. of mineral Barbary clays.” “Parcel C, . . . is the longest of the

parcels, but narrow, and consists of 386 ac. of both organic soils . . . and mineral soils.” Id.

3

The Vincent property “covers about 6,800 acres in Orleans and St. Bernard Parishes . . . [where] the southern 40

percent of the property is located in the Central Wetlands.” Gov. Mot. for Summ. Judgment Ex. 37, ECF No. 99 at 3

(The Kemp Expert Report).

4

“The property of Borgnemouth Realty Company consists of two contiguous sections,” the Southeast and

Northwest sections. 2017 Mendelssohn Report at 36. The Borgnemouth properties are in the Central Wetlands

“that extend from the Mississippi River Levee in a northeast direction to Lake Borgne,” with portions of each

property extending across the MRGO to the east. Id. at 30. “The Borgnemouth property, which includes a major

portion of Proctor Point . . . [and] the soils of the Borgnemouth brackish and salt marshes are primarily organic . . .

consisting of Clovelly and Lafitte muck.” Id.

5

Lake Eugenie, which has two separate property areas, the East and West, has a 240-acre area in the west located in

the central wetlands, Eugenie West. Id. at 16. “The majority of the Lake Eugenie Land & Development . . .

property is located along the outer fringe remnants of the St. Bernard delta, often referred to as the Biloxi marshes,”

or Eugenie East. Id. Category One thus only includes Eugenie West.

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MRGO construction ended in 1968, and the environmental effects of the MRGO on the

surrounding marshlands began to occur soon after.6 See Gov. Mot. for Summ. J., Ex. 19 at 86–

88 (Environmental Baseline Study for the St. Bernard Parish Police Jury). A 1982 study found

between 1955 and 1978, the Central Wetlands had lost all fresh-to-intermediate marsh, more

than doubled the amount of brackish marsh, and introduced a significant amount of saline

marsh.7 A further study published in 1982 described the environmental impact of saltwater

intrusion and erosion as contributing to the loss of marshland in the immediate area. Gov. Mot.

for Summ. J., Ex. 18 at 15–30 (St. Bernard Parish: A Study in Wetland Management). By 1984,

the Corps released a report which noted the marshland around the St. Bernard Parish was

disappearing at a rate of approximately 21,900 acres per year. See 1984 Initial Evaluation Study

at 60–61. In 1986, Congress formally recognized problems surrounding the destruction of

marshland by passing WRDA, establishing the Office of Environmental Policy to:

[D]evelop, and monitor compliance with, guidelines for the consideration of

environmental quality in formulation and planning of water resources projects

carried out by the Secretary, the preparation and coordination of environmental

impact statements for such projects, and the coordination with Federal, State, and

local agencies of environmental aspects of such projects and regulatory

responsibilities of the Secretary.

33 U.S.C. § 2294.

In 1988, the Corps released a reconnaissance report which placed the previous reports of

erosion and the MRGO into perspective: “Erosion and disintegration of the banks of the MR-

GO has created many additional routes for saltwater to intrude into formerly less saline interior

marshes. Consequently, salinity in the marshes has increased significantly in the last 20 years.”

1988 Reconnaissance Report at 27. The 1988 Reconnaissance Report found the increased

salinity levels contributed to the reduction in “the amount of three-cornered grass” growing in

the local marshlands, as well as the reduction of wildlife populations and vegetation in the

marshland. Id. The Report thus concluded “[s]altwater intrusion . . . contributes significantly to

marsh loss in the study area.” Id. Consistent with this date, the government points to 1988 and

the release of the Corps Reconnaissance Report as the date plaintiffs’ claims “stabilized,”

starting the statute of limitations. Gov. Mot. for Summ. J. at 36–37.

Before constructing the MRGO, “[t]he United States obtained [from plaintiffs] federal

navigational servitudes in the designed footprint of the channel, and also acquired rights of entry

for construction and spoil disposal that extended 1500 feet from the channel’s original

centerline.” Gov. Mot. for Summ. J. at 9. The marshland in close proximity to the channel

creates a difficult question of fact as to whether any applicable government easement or

servitude extends to takings occurring on those properties, particularly in attempting to

6

“Greater than 12,000 acres of the swamps in the CWU, South Lake Borgne and other units were killed shortly after

the opening of the MRGO . . . .” Day Report at 19. “Levels of salinity in the Central Wetlands Unit . . . and

adjacent areas . . . before the opening of the MRGO were generally between fresh and 4 ppt. After the MRGO was

opened, salinities in the Central Wetlands Unit . . . were consistently higher than 5 ppt and often higher than 10 ppt.”

Id. at 41–42.

7

During this period, the Central Wetlands lost all 5,678 acres of fresh-to-intermediate marsh, increased the number

of acres of brackish marsh from 3,721 to 7,425, and added 1,198 acres of saline marsh. See Day Report at 48.

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determine whether saltwater permeated beyond the bounds of the easement. As discussed in the

Day Report, no two hydrological surveys of the area “necessarily exactly match those estimated

by a different team” because “[d]iscrepancies may arise from interpretation techniques, sampling

resolution, or differences in environmental factors.” Gov. Mot. for Summ. J., Ex. 8 (“Day

Report”) at 37. Based on difficulties stemming from “the realities of the terrain and the

difficulty in determining the exact boundary of the easement . . . requiring the plaintiffs to sue

immediately upon initial encroachment . . . is too rigid of an application of the stabilization

doctrine.” Boling, 220 F.3d at 1372–73. As the Court observed during its site visit and

photographic exhibits in the record, the terrain of plaintiffs’ properties consists of vast amounts

of irregular wetlands and marshes. See, e.g., Gov. Mot. for Summ. J., Ex. 11 at 2 (“Britsch

Report”). This is especially the case where plaintiffs’ claim saltwater intrusion caused

vegetation loss and in turn erosion, an occurrence not bound by specific geographical

boundaries. See Boling, 220 F.3d 1373 (directing courts examining the stabilization doctrine to

consider “the uncertainties of the terrain, the difficulty in determining the location of the

government’s easement, and the irregular process of erosion”). These geographical features

make it difficult to determine exact boundary lines and specific points where saltwater intrusion

first permeated into properties and vegetation loss which may have led to the alleged land taking.

Uncertainties of terrain and the irregularity of erosion left plaintiffs unable to

immediately determine the permanency of any alleged taking following completion of the

MRGO in 1968. As of at least 1982, Congress was still commissioning reports to determine the

extent of erosion occurring in the areas around the MRGO. See 1988 Reconnaissance Report at

2. Plaintiffs’ claims may have stabilized as early as 1978, however, when local interests began

the Violet Siphon program to provide freshwater diversions to Category One. See Fallini v.

United States, 56 F.3d 1378, 1382 (Fed. Cir. 1995) (noting “[i]t is not necessary that the damages

from the alleged taking be complete and fully calculable before the cause of action accrues . . .

[so long as] the ‘permanent nature’ of the taking was evident”). The Violet Siphon program was

a freshwater diversion system 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.” Pls.’ Mot. for Partial Summ. J., Ex. 46 at 1-14 (U.S. Army Corp. of Engineers “Final

Environmental Impact Statement for the Mississippi River-Gulf Outlet (MRGO), Louisiana, and

Lake Borgne – Wetland Creation and Shoreline Protection Project”). Planning the construction

of the siphon may indicate local landowners were aware of the “substantial encroachment” of

saltwater onto their property and affirmatively sought to counteract this encroachment with

freshwater diversions to regain marshland. See Boling, 220 F.3d at 1372 (the stabilization

doctrine requires the Court to determine when there was sufficient “substantial encroachment”

onto plaintiffs’ land to make plaintiffs aware of the alleged taking).

Plaintiffs argue the “gradual physical process that have eroded and continue to erode

plaintiffs’ properties” either “to this date have not yet stabilized” or, if the claims have stabilized,

“stabilization did not occur until July 9, 2009, when the MRGO was finally physically

closed . . . .” Pls.’ Mot. for Partial Summ. J., at 2. At the time the 1988 Reconnaissance Report

was released, however, landowners were not only made aware of the negative effects of saltwater

intrusion by the Corps itself, but also were visually aware—or should have been visually

aware—a taking was occurring. Plaintiffs’ claims in Category One are based on the theory

saltwater intrusion killed the natural vegetation in the area, and erosion occurred when the roots

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of these dead plants could no longer hold the soil in place. Am. Compl. at ¶ 31. The 1988

Reconnaissance Report explicitly highlights the increasing salinity of the marshes due to

saltwater intrusion and corresponding loss of marshland, noting “salinity in the marshes has

increased significantly in the last 20 years” which in turn “greatly reduced” marshland vegetation

less tolerant to high salinity conditions. Pls.’ Mot. for Partial Summ. J., Ex. 7 at 27 (1988

Reconnaissance Report). By 1988, the increased salinity described in the 1988 Reconnaissance

Report would likely have caused the same alleged physical ramifications as forms the basis for

plaintiffs’ claims for erosion-based takings in Category One, namely the death of various plant

life and conversion of the marshland from lower to higher-salinity marshes. A 1999 study

further reinforces the permanency of the alleged taking around 1988, based on reports of

hydrological effects occurring at the time.8 Stabilization does not require “the progressive

environmental damage [to] stop[],” and the publishing of the 1988 Reconnaissance Report both

publicly represented the government’s recognition of the issue of erosion caused by the MRGO

and documented physical evidence of the substantial encroachment of saltwater onto plaintiffs’

land and the corresponding effects of this encroachment. Boling, 220 F.3d at 1371. By 1988, the

saltwater plaintiffs attribute as the cause of erosion on their land sufficiently “invaded the private

property such that the permanent nature of the taking is evident and the extent of the damage is

reasonably foreseeable.” Id.

In summary, for Category One, the evidence in the record indicates “environmental

forces . . . substantially and permanently invaded the private property” sufficient for the

stabilization doctrine to apply at some point between 1978, the year the Violet Siphon project

was initiated, and 1988, the year the 1988 Reconnaissance Report was published. Boling, 220

F.3d at 1371. Viewing the evidence in the light most favorable to plaintiffs, however,

stabilization of plaintiffs’ claims occurred in 1988 following the 1988 Reconnaissance Report

and the visible physical changes occurring on the property. On the other hand, viewing the

evidence in the light most favorable to the government, stabilization of plaintiffs’ claims

occurred when local interests recognized the potential permanency of erosion in Category One

and initiated the Violet Siphon program as an attempt to counteract the erosion. See Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986) (noting courts must

draw all inferences at the summary judgment stage “in the light most favorable to the party

opposing the motion”). Therefore, for the purpose of the government’s motion for summary

judgment, absent justifiable uncertainty tolling the statute of limitations, the six-year statute of

limitations period for plaintiffs’ claims in Category One expired in 1994. For the purpose of

plaintiffs’ motion for summary judgment, absent justifiable uncertainty tolling the statute of

limitations, the six-year statute of limitations period for plaintiffs’ claims in Category One

expired in 1984. See Applegate v. United States, 25 F.3d 1579, 1583 (Fed. Cir. 1994).

B. Justifiable Uncertainty

For landowners to be “justifiably uncertain” as to the permanency of the alleged taking,

“the question is whether the ‘predictability [and permanence] of the extent of damage to the

8

Between 1956 and 1978, the amount of fresh-to-intermediate marsh decreased from 11,620 acres to 1,520 acres,

while the amount of brackish marsh increased from 13,490 acres to 21,710 acres. From 1978 to 1990, however, the

amount of fresh-to-intermediate marsh decreased only from 1,520 acres to 620 acres, and the amount of brackish

marsh actually decreased from 21,710 acres to 19,710 acres. See Day Report at 53.

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[plaintiffs’] land’ was made justifiably uncertain by the Corps’ mitigation efforts.” Banks v.

United States. 314 F.3d 1304, 1309 (Fed. Cir. 2003) (citing Applegate, 25 F.3d at 1583). A

project aimed at mitigating damages would constitute justifiable uncertainty as to the

permanency of the alleged taking, thus tolling the statute of limitations, if it were implemented

after the date on which the Court deems plaintiffs alleged taking to have “stabilized.” Banks,

314 F.3d at 1309. To determine whether proposed or actual mitigation efforts by the Corps made

landowners justifiably uncertain as to the permanency of the alleged takings in Category One and

therefore tolled the statute of limitations, the Court twice ordered plaintiffs to provide

supplemental briefing listing proposed and completed projects affecting the justifiable

uncertainty analysis of Category One, and the government had an opportunity to respond to each.

See Order, ECF No. 152; Order, ECF No. 160. All projects plaintiffs provided as applicable to

the justifiable uncertainty analysis are considered in the Court’s analysis.9

As early as 1979, the local interests began taking steps to mitigate damage to marshlands

in the Central Wetlands by building the Violet Siphon to revitalize the area through delivery of

fresh water.10 See Day Report at 29. The Violet Siphon program was initiated in 1978, the

siphon was built by the St. Bernard Parish in 1979, and it initially operated until 1983. Id. The

Violet Siphon “was again brought into operation [by the Louisiana Department of Natural

Resources] . . . beginning in 1990.” Id. The Violet Siphon “was operated for four years in the

mid-1990s . . . and was not maintained subsequent to 1997 . . . .” Gov. Mot. Summ. J., Ex. 16 at

42 (Assessment of Wetland Habitat Change on Litigated Properties Adjacent to The Mississippi

River Gulf Outlet (MRGO)) (“2017 Mendelssohn Report”). And in 2003, repairs were made to

rehabilitate the Violet [S]iphon . . . and the siphon was reopened shortly after the repairs were

made.11 Id. The Violet Siphon “was intended to freshen 17,980 acres of cypress swamp and

marsh near the outfall into the Central Wetlands.” Id.12 Plaintiffs argue “[t]he Violet Siphons

9

Plaintiffs’ 15 June 2020 supplemental paper listed the following completed or proposed items as relevant to a

justifiable uncertainty analysis for Category One: The Louisiana Coastal Wetlands Restoration of 1993; the

Mississippi River Gulf Outlet Ecosystem Restoration Plan’s Final Feasibility Report; and the beneficial use of

dredged materials. See Pls.’ Paper at 1–2. Plaintiffs’ 30 June 2020 supplemental paper listed the following

completed or proposed items as relevant to a justifiable uncertainty analysis for Category One: the “Violet Siphon”

freshwater diversion project; the Coastal Wetlands Planning, Protection, and Restoration Act and related wetlands

construction projects proposed, planned, or funded under the Act; the establishment of the Coastal Wetlands

Planning, Protection, and Restoration Act Task Force’s Coast 2050 Report; the Water Resources Development Act

and related wetlands construction projects proposed, planned, or funded under the Act, the Mississippi River-Gulf

Outlet Ecosystem Restoration Plan and related wetlands construction projects proposed, planned, or funded under

the plan; and the Mendelssohn Report. See Pls.’ Supp. Paper at 2–15.

10

“The Violet Siphons were constructed 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. The siphons were

operational for only four years due primarily to public opposition to large amounts of sediment deposited in [the]

Violet Canal, interfering with navigation.” Pls.’ Mot. for Partial Summ. J., Ex. 46 at 1–14 (U.S. Army Corp. of

Engineers “Final Environmental Impact Statement for the Mississippi River-Gulf Outlet (MRGO), Louisiana, and

Lake Borgne – Wetland Creation and Shoreline Protection Project”).

11

The Violet Siphon was put back into operation after the Louisiana Department of Natural Resources completed

the Violet Siphon Diversion project, which “return[ed] into operation the existing siphon, and [] enlarge[d] the size

of the diversion so that more sediment and freshwater are available to offset marsh subsidence and saltwater

intrusion.” Pls.’ Supp. Paper at 4.

12

As stated in the Mendelssohn Report, when discussing saltwater intrusion during 2001 to 2013, “the salt marsh in

the southern portion of [the Borgnemouth Property] began to retreat in 2009 in the direction from which it had

expanded, completely disappearing in 2007 and 2013 . . . . It is plausible that freshwater discharge from the Violet

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were constructed with the objective of restoring the project area to a fresher state” and provided

sediment and freshwater “to offset marsh subsidence and saltwater intrusion.” See Pls.’ Supp.

Paper at 3–4 (citations omitted). The government argues in response, “[u]nlike the projects in

Applegate and Banks,” the Violet Siphon “was not conceived to ‘mitigate’ the effects of the

Corps’ Mississippi River Gulf Outlet,” and “[p]laintiffs offer no evidence that the locally-built

Violet Siphon had any impact on freshening the vegetation or remediating land loss on their

properties between 1979 and 1983.”13 Gov.’s Resp. to Pls.’ Supp. Paper at 3–4.

A landowner need not receive “a legally binding promise or duty or a matter requiring a

congressional appropriation” to be justifiably uncertain as to the permanency of an alleged

taking. Banks, 314 F.3d at 1309. Rather, the “mere promise” of mitigation efforts, “held out by

the Corps and repeatedly renewed but never implemented, indicate[s] that ‘the landowners did

not know when or if their land would be permanently destroyed.’” Id. (quoting Applegate, 25

F.3d at 1583). “[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. Applegate, 25 F.3d

at 1584. Throughout the early 1990s, the Corps began to move forward with additional plans,

task forces, and completed projects directed to the goal of “no overall net loss of the Nation’s

remaining wetlands base . . . .” 1990 WRDA at § 307(a).14 By the late 1990s, and stretching

Canal played a role in the freshening of the southern portion of [the Borgnemouth Property] from 2001 through

2013.” 2017 Mendelssohn Report at 35.

13

The government argues justifiable uncertainty requires “objectively reasonable beliefs that the United States

would completely reverse and remediate government-caused erosion” and, because the Violet Siphon was “first built

‘by local interests,’” and “not a federal project,” the Court should not consider the Violet Siphon in any justifiable

uncertainty analysis before it “was rebuilt as a State project in 1992 . . . .” Gov.’s Response to Pls.’ Supp. Paper at

2–4. As the Court assumes the stabilization date for the purposes of the government’s motion for summary

judgment is 1988, it need not decide at this time whether the “first operation” of the Violet Siphon constituted

justifiable uncertainty. The government admits the Violet Siphon was rebuilt in 1992, and therefore its operation as

a “state project” began within the statute of limitations period running from 1988. 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. The government’s promise in Applegate to restore the littoral flow was specifically what “destroyed any

predictability of the extent of damage to the land,” but the ultimate question the Federal Circuit emphasized as

determining whether landowners were justifiably uncertain was whether the landowners knew “when or if their land

would be permanently destroyed.” Applegate, 25 F.3d at 1582–83; see also Banks, 314 F.3d at 1309 (“This court

has noted that the ‘critical element that delayed stabilization in Applegate [is] the justifiable uncertainty about the

permanency of the taking.’”) (quoting Boling, 220 F.3d at 1372) (citations omitted). Further, at this stage the record

is not clear as to the source of funding for the initial operation of the Violet Siphon or whether the initial operation

was supported by federal money.

14

In 1990, Congress passed the Water Resource Development Act of 1990. See the 1990 WRDA. Additional

legislation in 1990 included the Coastal Wetlands Planning, Protection and Restoration Act 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., 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 in 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 9, 24.

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into the early 2000s, the Corps continued planning and implementing additional projects15 to

further mitigate any alleged negative effects to the marshlands.16 Following Hurricane Katrina in

2005, additional projects were contemplated and implemented which effected the marshland

areas in the Central Wetlands.17

The marshlands of the Central Wetlands region experienced significant fluctuations in

salinity classifications during the time period overlapping with the various projects performed

and proposed by the Corps.18 Between 1988 and 1997, certain areas of marshland cycled

15

In 1994, the Corps prepared a bank erosion reconnaissance report, which studied projects approved in the 1991,

1992, and 1993 reports, including the “Violet Freshwater Distribution project” which aimed to “increase the use of

fresh water, nutrients, and sediments drawn from the Mississippi River from the existing Violet Siphon.” Pls.’ Mot.

for Partial Summ. J., Ex. 42 at 4. This project was reauthorized under the 2007 WRDA. Pls.’ Mot. for Partial

Summ. J., Ex. 46 at 1–14 (U.S. Army Corp. of Engineers “Final Environmental Impact Statement for the Mississippi

River-Gulf Outlet (MRGO), Louisiana, and Lake Borgne – Wetland Creation and Shoreline Protection Project”).

16

In 1999, under the 1996 WRDA, the Corps conducted three projects along the MRGO to create 76 acres of

wetlands with materials dredged from the channel. Am. Compl. at ¶ 31. In the 2004 USCAE LCA Ecosystem

Restoration study, the Corps warned that the “rate of wetland loss in the area is accelerating” and “[r]apid 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 31 (U.S. Army

Corps of Engineers, Louisiana Coastal Area (LCA), Louisiana, Ecosystem Restoration Study (November 2004)).

The Corps proposed building 38 miles of rock breakwaters along the banks of the MRGO to prevent the merger of

the MRGO and Lake Borgne, noting such construction “has been effectively used . . . to prevent bankline retreat and

protect large areas of estuarine wetlands from further erosion and degradation.” Id. at 2. The rock breakwaters

further “may also facilitate future wetland creation using dedicated dredging and/or beneficial use of dredged

material . . . .” Id. at 32. Additionally, in 2004, the Corps presented in a PowerPoint demonstration the Breaux Act

Projects, which detailed four projects at the preliminary engineering design (“PED”) phase and two projects

constructed. Pls.’ Reply Br. Opp’n, Ex. 56 at 46–47 (U.S. Army Corps of Engineers, MRGO Studies). The PED

projects included two shoreline protection projects along Lake Borgne and the MRGO with an estimated cost of $45

million to benefit 495 acres of land, and the constructed projects included two hydrologic restoration projects in the

same area which cost $2.6 million and benefited 889 acres. Id.

17

In 2006, Congress mandated the Corps develop a comprehensive plan to de-authorize the MRGO, and in the 2007

WRDA, Congress authorized the closure of the MRGO. Pls.’ Mot. for Partial Summ. J., Ex. 51 at 1 (Mississippi

River-Gulf Outlet Deep Draft De-authorization Study). The WRDA authorized and appropriated projects including:

placing 23 miles of rock break along the north bank, adding 15 miles of rock break along the southern shore of Lake

Borgne, and addressing the loss of 6,350 acres of marsh. Pls.’ Mot. for Partial Summ. J., Ex. 46 at 1-12 (U.S. Army

Corp. of Engineers “Final Environmental Impact Statement for the Mississippi River-Gulf Outlet (MRGO),

Louisiana, and Lake Borgne – Wetland Creation and Shoreline Protection Project”). In June 2009, the USCAE

prepared the Final Environmental Impact Statement for MRGO-Wetland Creation and Shoreline Protection Project,

which proposed “construct[ing] shoreline protection features along the Lake Borgne shoreline and restore and

nourish wetlands in the MRGO and Lake Borgne estuarine complex.” Pls.’ Mot. for Partial Summ. J., Ex. 46 at ES-

1 (U.S. Army Corp. of Engineers “Final Environmental Impact Statement for the Mississippi River-Gulf Outlet

(MRGO), Louisiana, and Lake Borgne – Wetland Creation and Shoreline Protection Project”). The funding for

these projects was envisioned to come from $75,000,000 Congress appropriated “for the repair, construction or

provision of measures or structures necessary to protect, restore or increase wetlands, to prevent saltwater intrusion

or storm surge.” Id. at ES-2. In July 2009, the Corps officially closed the MRGO, and no non-federal sponsor came

forward to begin the authorized restoration projects, delaying restoration efforts. See 2012 Feasibility Report at S-2.

In June 2012, the Corps prepared the Mississippi River Gulf Outlet Ecosystem and Restoration Plan Final Feasibility

Report with the purpose “to develop alternative plans to restore natural features and processes in the Lake Borgne

ecosystem and areas affected by the former navigation channel.” Id. at S-6.

18

“In the Central Wetlands, there was no fresh marsh. Intermediate marsh has decreased significantly (2,814 acres)

and brackish marsh had increased (14,628 acres). Swamp decrease significantly (1,817 acres) and occurred only

where there was a dependable source of fresh water such as around pumping stations that introduced water from

rainfall and treated municipal effluent.” Day Report at 45. “In the Central Wetlands Unit, from the 1950s to the

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between classification as brackish marsh, intermediate marsh, and saline marsh.19 In other areas

of the marshlands of the Central Wetlands, similar fluctuations in the levels of brackish and salt

marshes occurred between 1968 and 2013.20 An additional area of marshland in the Central

Wetlands observed similar oscillation in the level of brackish marsh between 1968 and 2013.21

Lastly, a final area of marshland also experienced significant fluctuation in levels of brackish

marsh between 1968 and 2013.22 Fluctuations in the salinity of the Category One marshlands are

significant because plaintiffs’ theory of takings is based on saltwater intrusion increasing the

salinity of the marshland, which allegedly killed the natural vegetation of the marsh and led to

erosion of soil no longer held in place by root systems. Am. Compl. at ¶ 31. A decrease in the

salinity of Category One could indicate to landowners the Violet Siphon is both effectively

providing sediment dispersals through freshwater diversions and is lowering the salinity of the

surrounding marshlands enough to drastically slow the rate of erosion.23 A landowner reading

reports on the planned restoration of the marsh through freshwater diversion and observing the

fluctuations in salinity could therefore reasonably assume the Corps projects are mitigating any

negative effects of the MRGO to the wetlands. Applegate, 25 F.3d at 1584 (finding “[t]he Corps

2000s, there were decreases in fresh marsh (-11,120 acres) and swamp (-7,812 acres) . . . . There were increases in

intermediate (2,814 acres) and brackish (1,175) marsh, open water (5,239 acres) and spoil (9,315) acres.” Id. at 46.

19

“[H]abitat change was considerable between 1988 and 1997. Brackish marsh decreased from 61.5% of the

property to 33% due primarily to conversion to saline marsh, which comprised 15% of the property. The increase in

water habitat (32.5% of the property) appears to have resulted from both interior pond formation and from erosion

along the MRGO. Intermediate marsh habitat comprised 7% of the property, most likely arising from the freshening

effect of the violet siphon.” 2018 Mendelssohn Report at 4. Yet just four years later, in 2001, “saline marsh had

converted back to brackish marsh, covering 49% of the property, with little intermediate marsh (0.5%) and water

comprising 39% of the property.” Id.

20

The level of brackish marsh steadily increased in Eugenie West by one acre from 1968 to 1978, from 1978 to

1988, and from 1988 to 1997. From 1997 on, however, the area of brackish marsh steadily fell by at least one acre

from 1997 to 2001, from 2001 to 2007, and from 2007 to 2013. 2017 Mendelssohn Report at 52. For the

Borgnemouth property, the level of brackish marsh steadily increased up until sometime between 1978 and 1988;

whereupon a sharp drop in the acreage of brackish marsh was experienced until a point in time between 1997 and

2001. Id. at 54. At some point between 2001 and 2007, however, the level of brackish marsh again dropped and

stayed at this lower level until the study concluded in 2013. Id. The acreage of salt marsh on the Borgnemouth

property also underwent significant fluctuation. Following construction of the MRGO, all salt marsh disappeared

sometime between 1978 and 1988. By 1988, however, a significant area of land (1,283 acres) became salt marsh.

This level steadily dropped until ultimately reaching zero again by 2007, only to increase again by 2013 to more

than 700 acres. Id.

21

The level of brackish marsh for the Livaudais properties steadily increased following construction of the MRGO

until somewhere between 1978 and 1988. Thereafter, a decrease in the level of brackish marsh was observed until

somewhere between 1997 and 2001, where a large spike of more than 400 acres of brackish marsh reappeared.

Thereafter, the levels of brackish marsh began gradually decreasing. See 2017 Mendelssohn Report at 55.

22

In the Vincent Marshlands, the levels of brackish marsh steadily decreased from 1968 to 1997. From 1997 to

2001, however, the levels of brackish marsh increased by nearly 1,500 acres. From 2001 to 2013, the levels of

brackish marsh began to fall again, though still remaining nearly 1,000 acres larger than their lowest recorded level

in 1997. See 2018 Mendelssohn Report at 57.

23

The first operation of the Violet Siphon was shut down because it was depositing sediment in the Violet Canal so

effectively it was interfering with navigation along the canal. Pls’ Mot. for Partial Summ. J. Ex. 46 at 1–14 (U.S.

Army Corp. of Engineers “Final Environmental Impact Statement for the Mississippi River-Gulf Outlet (MRGO),

Louisiana, and Lake Borgne – Wetland Creation and Shoreline Protection Project”). A landowner could reasonably

believe the continued operation of the Violet Siphon would result in additional sediment being deposited into

Category One, counteracting the effects of erosion on the surrounding area.

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further complicated ascertaining the extent and nature of the consequences of this process with

proposals to correct the damage”).

The studies and project proposals on marshland restoration, combined with the previously

completed projects in the marshlands of the Central Wetlands and the fluctuations in salinity of

the Central Wetlands during the period in time the government completed restoration projects,

demonstrate the government’s commitment to mitigation efforts. The actual and proposed

mitigation activities affecting Category One may contribute to when “a land owner should have

known the land suffered erosion,” because the government’s actual or proposed mitigation

created “greater uncertainty . . . [when] the Corps in this case actually performed its mitigation

activities.” Boling, 220 F.3d at 1373; Banks at 1309–10. A landowner could reasonably rely on

previously completed projects in the marshlands, such as intermittent operation of the Violet

Siphon, in addition to public reports and grants related to future projects, to provide redress for

the accrued damage from erosion. In particular, the Violet Siphon acted to provide an outflow of

fresh water into the marshlands of Category One “so that more sediment and freshwater are

available to offset marsh subsidence and saltwater intrusion.” Pls.’ Supp. Paper at 4.

Although the completion of the MRGO had an immediate effect on the surrounding

marshlands, the uncertainties of terrain, difficulties in determining the location of the

government’s easement, and irregularity of the erosion meant plaintiffs’ claims did not stabilize

immediately upon the channel’s opening but rather likely stabilized at some point between 1978

and 1988. Viewing the evidence in the light most favorable to plaintiffs, stabilization of

plaintiffs’ takings claims in Category One occurred by 1988, when the 1988 Reconnaissance

Report was published and the physical changes should have been apparent. For the purposes of

the cross-motions for summary judgment, the Court therefore concludes the evidence before it

indicates stabilization occurred no later than 1988. The Violet Siphon, which was constructed in

1979 and was operated intermittently throughout the 1980s, 1990s, and 2000s, was specifically

constructed 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.” Pls.’

Mot. for Partial Summ. J., Ex. 46 at 1-14 (U.S. Army Corp. of Engineers “Final Environmental

Impact Statement for the Mississippi River-Gulf Outlet (MRGO), Louisiana, and Lake Borgne –

Wetland Creation and Shoreline Protection Project”). Furthermore, plaintiffs cite various

planned and completed beneficial dredging and wetland creation projects running through 2009

or later. Reading the evidence of the government’s proposed and completed mitigation efforts in

the light most favorable to plaintiffs, justifiable uncertainty may toll the statute of limitations on

plaintiffs’ claims related to Category One. Banks, 314 F.3d at 1310.

VII. Analysis of Category Two – South Lake Borgne

South Lake Borgne corresponds to geographical “Subunit 40” of Exhibit 1 contained in

the 2012 Feasibility Report. 2012 Feasibility Report at 2-58. Subunit 40 includes the

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Livaudais,24 Vincent Marshlands,25 Borgnemouth,26 Biloxi,27 and Lake Eugenie properties.28 See

JSR at 1. “South Lake Borgne covers the MRGO/Lake Borgne Landbridge, the strip of marsh

separating the MRGO from the [L]ake [Borgne].” 2012 Feasibility Report at 2-122, Figure 2-29.

South Lake Borgne is located on the north side of the MRGO adjacent to the Central Wetlands.

Id. There are thus two distinct types of land within Category Two: property situated on the

banks of the channel and the remaining marshlands.

A. Channel Land Area

1. Stabilization Doctrine

For land situated on the channel itself, plaintiffs allege the following physical taking:

Because the soft soils on the sides of the original channel would not stand up at

such a steep angle, and because of the maintenance . . . conducted by the Corps of

Engineers, the soil began to slide or “slough-off” into the bottom of the

channel. . . . [T]he erosion process has continued over the years up to this date,

and as a result, the channel is now over 2,000 feet wide at the surface. . . . This

erosion process will continue into the future unless additional and complete shore

protection measures to prevent future erosion are immediately implemented . . . .

Am. Compl. ¶ 30.

The MRGO channel cut directly through South Lake Borgne, which was only open to

Lake Borgne on its northern bank. In 1968, the MRGO’s initial surface width was 650 feet, with

a bottom width of 500 feet. See Britsch Report at 41. Prior to construction of the MRGO, “[t]he

United States obtained [from plaintiffs] federal navigational servitudes in the designed footprint

of the channel, and also acquired rights of entry for construction and spoil disposal that extended

1500 feet from the channel’s original centerline.” Gov. Mot. for Summ. J. at 9.

Beginning in at least 1983 and ranging through the 1980s, the government conducted

Environmental Assessments (“EAs”) related to “foreshore protection test sections” along the

bank of the MRGO touching Category Two.29 These EAs may have been a direct response by

the government to the substantial changes to the width of the channel and issues related to

24

For Livaudais, Parcel C extends across the MRGO into South Lake Borgne. See 2017 Mendelssohn Report at 36–

37.

25

The Vincent Marshlands property is one continuous piece of property extending across the MRGO into South

Lake Borgne. 2018 Mendelssohn Report at 25.

26

Both the Southeast and Northwest Borgnemouth properties extend across the MRGO into South Lake Borgne,

with the Southeast property extending into proctor point. 2017 Mendelssohn Report at 56.

27

Biloxi owns two separate property groups, Biloxi East and Biloxi West. “The majority of the [Biloxi East]

property . . . is located to the west of Lake Eugenie Land & Development property, but still within the Biloxi

marshes.” Id. at 23. Biloxi West is “a smaller section of land at Proctor Point.” Id. “The [Biloxi West] property-

section is characterized by organic brackish marsh soils of the Lafitte and Clovelly series. The Lafitte muck has a

thicker organic layer than the Clovelly muck.” Id. at 24.

28

For Lake Eugenie, a portion of the Western property is in South Lake Borgne. Id. at 56.

29

See Pls.’ Paper at 3 (listing EA #38 as signed 15 August 1983 and affecting land in Category Two).

- 27 -

erosion occurring along the banks, indicating the government was aware of all of the facts

necessary to stabilize a takings claim. See Fallini v. United States, 56 F.3d 1378, 1382 (Fed. Cir.

1995) (noting “[i]t is not necessary that the damages from the alleged taking be complete and

fully calculable before the cause of action accrues . . . [so long as] the ‘permanent nature’ of the

taking was evident”). Consequently, it may also therefore indicate landowners along the channel

should have similarly been aware by this point of the stabilization of their takings claim. Id. In

1988, the Corps published the 1988 Reconnaissance Report, which stated the MRGO “land cut

has increased from [a top width of] 650 feet to an average of 1,500 feet” and “the unleveed

reaches are retreating at varying rates from five to over 40 feet per year.” 1988 Reconnaissance

Report at 26, 30. Thus, while the government originally received servitudes extending up to

1,500 feet from the centerline of the channel for construction and spoil disposal, the entirety of

the area granted in the servitudes was now being utilized only for the channel itself. Id. By 1988

the average width of the channel therefore exceeded the original channel footprint by more than

230%. Stabilization does not require “the progressive environmental damage [to] stop[]”; this

nearly 1,000-foot increase in the width of the channel constitutes a substantial and permanent

invasion of “private property such that the permanent nature of the taking is evident and the

extent of the damage is reasonably foreseeable.” Boling v. United States, 220 F.3d 1365, 1371

(Fed. Cir. 2000); see also id. at 1373 (holding “the takings claims accrued when the erosion has

substantially encroached the parcels at issue and the damages were reasonably foreseeable”).

Landowners’ claims would have therefore stabilized by at least the time the 1988

Reconnaissance Report was released.

The evidence available in the record related to bank erosion and the widening of the

channel indicate there was “substantial and permanent” invasion of private property sufficient to

trigger the stabilization doctrine at some point between 1983, when the government started

issuing EAs potentially affecting the widening of the MRGO channel, and 1988, the year the

1988 Reconnaissance Report detailed the substantial widening of the channel. For the purpose

of the government’s motion for summary judgment, by at least 1988 the dramatic growth of the

channel and the release of the 1988 Reconnaissance Report put the landowners on adequate

notice for a taking to accrue. Therefore, absent justifiable uncertainty tolling the statute of

limitations, the six-year statute of limitations period for plaintiffs’ claims along the channel of

Category Two expired in 1994. See Applegate v. United States, 25 F.3d 1579, 1583 (Fed. Cir.

1994).

2. Justifiable Uncertainty

For landowners to be “justifiably uncertain” as to the permanency of the alleged taking,

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.” Banks v.

United States, 314 F.3d 1304, 1309 (Fed. Cir. 2003) (citing Applegate, 25 F.3d at 1583). A

project aimed at mitigating damages would constitute justifiable uncertainty as to the

permanency of the alleged taking, thus tolling the statute of limitations, if it were implemented

after the date on which the Court deems plaintiffs alleged the taking to have “stabilized.” Id. To

determine whether proposed or actual mitigation efforts by the Corps made landowners

justifiably uncertain as to the permanency of the alleged takings of land along the channel of

Category Two and therefore tolled the statute of limitations, the Court twice ordered plaintiffs to

- 28 -

provide supplemental briefing listing proposed and completed projects affecting the justifiable

uncertainty analysis of Category Two, and the government had an opportunity to respond to

each. See Order, ECF No. 152; Order, ECF No. 160. All projects plaintiffs provided as

applicable to the justifiable uncertainty analysis are considered in the Court’s analysis.30

From the period of 1988 to 2008, the Corps completed a series of projects constructing

various forms of foreshore protections to address the environmental and physical impacts of the

MRGO on property along the channel.31 These completed projects demonstrate the Corps’

commitment to the actual implementation of mitigation efforts to restore plaintiffs’ lands on or

around the channel, and they create justifiable uncertainty with plaintiffs sufficient to toll the

statute of limitations. Banks, 314 F.3d at 1309.

30

Plaintiffs’ 15 June supplemental paper listed the following completed or proposed items as relevant to a justifiable

uncertainty analysis for Category Two: Completed foreshore test construction projects; the “USACE Louisiana

Coast Area Land Loss and Marsh Creation Initial Evaluation Study” and proposals for beneficial use of dredged

materials contained therein; various reports related to bank and marshland erosion; the Louisiana Coastal Wetlands

Restoration Plan of 1993; proposed or completed channel bank stabilization projects; and other proposed or

completed projects related to the beneficial use of dredged materials. See Pls.’ Paper at 2–5. Plaintiffs’ 30 June

supplemental paper listed the following completed or proposed items as relevant to a justifiable uncertainty analysis

for Category Two: Completed projects related to the “installation of foreshore protection and beneficial use of

dredged material,” “various” completed CWPPRA projects, and “several” foreshore construction or remediation

projects proposed but not completed. See Pls.’ Supp. Paper, at 30–31.

31

The 1988 Reconnaissance Report detailed “[f]oreshore protection along the north bank of the MR-GO . . . [was]

completed.” 1988 Reconnaissance Report at 14. In 1991, EA #152 detailed a completed project where “[t]he

purpose of the project [was] to stabilize the north bank of the MRGO channel between Mile 50.5 and Mile 55.0

while protecting adjacent marsh from further erosion.” Pls.’ Mot. for Partial Summ. J., Ex. 18 at 2 (EA #152: Bank

Stabilization, Miles 50.5 to 55). In 1993, the Corps prepared an Issue Paper addressing bank erosion along the

MRGO stating: “Using FY 1992 Congressional aid funds in the amount of $3.5 million, 3.5 miles of rock bank

stabilization along the north bank of the channel have been constructed. Other measures to reduce erosion and

restore marsh are being addressed in an ongoing reconnaissance study, Mississippi River-Gulf Outlet Bank Erosion,

Louisiana, which is seeking the best plan, based on monetary and non-monetary benefits, to stabilize and restore the

banks of the ship channel.” Pls.’ Mot. for Partial Summ. J., Ex. 11 at 1 (Issue Paper: Mississippi River-Gulf Outlet,

LA- Bank Erosion). In 1996, EA #247 detailed a completed project where the purpose of the proposed action was to

stabilize the left descending (north) bank of the MRGO channel, between Miles 55.0 and 56.1, while protecting

adjacent marsh from further erosion. Pls.’ Mot. for Partial Summ. J., Ex. 23 at EA-4 (EA #247: Bank Stabilization,

Miles 55.0 to 56.1). In 1999, the Corps detailed in EA #288 the construction of a non-continuous rock bank along

the north bank of the MRGO. See Pls.’ Mot. for Partial Summ. J., Ex. 29 at 1 (EA #288: Mile 43 to Mile 41 North

Bank Stabilization). In 2004, EA #402 proposed a “14,360 linear foot rock breakwater . . . along the north bank” of

the MRGO. Pls.’ Mot. for Partial Summ. J., Ex. 35 at 1 (EA #402: Lake Borgne-MRGO Shoreline Protection

Project). In in 2005 civil action brought in the United States District Court Eastern District of Louisiana, plaintiffs

in the case stipulated to the government’s “Proposed Findings of Fact and Conclusions of Law” that “foreshore

protection had been installed along the 6 miles of the north bank and 18 miles of the south bank of the MRGO as of

August 29, 2005.” Pls.’ Mot. for Partial Summ. J., Ex. 5 at 14 (United States of America’s Proposed Findings of

Fact and Conclusions of Law in In Re: Katrina Canal Breaches Consolidated Litigation). In 2009, the Corps

detailed in the 2009 Final Environmental Impact Statement for the MRGO how the United States Environmental

Protection Agency, in project number PO-30 for CWWPRA, “provided an overview of the impacts and/or benefits

resulting from the installation of foreshore protection features in Lake Borgne. The goal of this project was to help

preserve the existing wetland land bridge between Lake Borgne and the MRGO by constructing shoreline protection

features along a total of 5.3 miles . . . of the Lake Borgne shoreline . . . [and] [t]his project was authorized for

construction on February 8, 2006, and construction activities began in September 2007” and “completed in

December 2008.” Pls.’ Mot. for Partial Summ. J., Ex. 46 at 1-11 (U.S. Army Corp. of Engineers “Final

Environmental Impact Statement for the Mississippi River-Gulf Outlet (MRGO), Louisiana, and Lake Borgne –

Wetland Creation and Shoreline Protection Project”).

- 29 -

Further, in addition to completed projects along the MRGO banks, plaintiff argues

proposed projects contributed to landowners’ justifiable uncertainty. See Am. Compl. at ¶ 48–

56. A landowner need not receive “a legally binding promise or duty or a matter requiring a

congressional appropriation” to be justifiably uncertain as to the permanency of an alleged

taking. Banks, 314 F.3d at 1309. Rather, the “mere promise” of mitigation efforts, “held out by

the Corps and repeatedly renewed but never implemented, indicate[s] that ‘the landowners did

not know when or if their land would be permanently destroyed.’” Id. (quoting Applegate, 25

F.3d at 1583). “[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. Applegate, 25 F.3d

at 1584. Following the completed foreshore projects, numerous studies on the MRGO’s erosive

effects, potential restoration plans, and projects proposed by the Corps were prepared with the

intent to restore the MRGO to its pre-MRGO state with the support of legislation and the award

of Congressional funds.32 Although some studies never received approval, others, including

multiple renewals of the WRDA, received congressional funds and led to subsequent projects

situated, at least in part, along the MRGO. Following Hurricane Katrina in 2005, additional

projects were contemplated, and Congressional funds awarded, for restoration of the MRGO.33

Numerous studies contained specific projects aimed at restoring South Lake Borgne to preserve

the land bridge separating Category Two from merging with Lake Borgne. While some of these

studies did not focus specifically on South Lake Borgne itself, many of the studies concerned the

entire channel, with detail regarding individual subunits—including South Lake Borgne. See

Pls.’ Mot. for Partial Summ. J., Ex. 41 at 75–79; 2012 Feasibility Report at 2-57–2-62. Plaintiffs

owning property situated on the channel itself could justifiably rely on those proposed restorative

efforts affecting both their land specifically and those affecting the entire channel to conclude the

32

Throughout the early 1990s, the Corps began to move forward with additional plans, task forces, and completed

projects directed to the goal of “no overall net loss of the Nation’s remaining wetlands base . . . .” See 1990 WRDA

at § 307(a); see also supra at fn. 14. In 1994, the Corps published a reconnaissance report recommending both

structural and nonstructural measures for “reducing bank erosion and/or restoring adjacent wetlands along the MR-

GO. Structural measures included the construction of bank protection structures, such as rock dikes, along the

channel; and the enlargement of the channel to increase its cross-sectional area.” Pls.’ Mot. for Partial Summ. J.,

Ex. 42 pt.1 at 35 (1994 MRGO Bank Erosion Reconnaissance Report). In 1998, a conglomerate of federal, state,

and local governments published a report noting the intent to authorize additional “funding for more rock along the

north bank,” in addition to “dredged material . . . to be used beneficially behind the rock.” Pls.’ Mot. for Partial

Summ. J., at Ex. 43 pt.2 at 89 (Coast 2050 Report). In 1999, under the 1996 WRDA, the Corps conducted three

projects along the MRGO to create 76 acres of wetlands with materials dredged from the channel. See Am. Compl.

at ¶ 53. In 2004, the Corps proposed building 38 miles of rock breakwaters along the banks of the MRGO to

prevent the merger of the MRGO and Lake Borgne. See Pls.’ Mot. for Partial Summ. J., Ex. 45 at 3 (U.S. Army

Corps of Engineers, Louisiana Coastal Area (LCA), Louisiana, Ecosystem Restoration Study (November 2004)).

The Corps noted the construction of rock breakwaters along the banks of the MRGO and southern shore of Lake

Borgne “has been effectively used . . . to prevent bankline retreat and protect large areas of estuarine wetlands from

further erosion and degradation.” Id. at 2. The rock breakwaters further “may also facilitate future wetland creation

using dedicated dredging and/or beneficial use of dredged material . . . .” Id. Additionally, in 2004, the Corps

presented in a Power Point the Breaux Act Projects, which detailed two “hydrologic restoration projects”

constructed in the region and two additional “shoreline protection projects” proposed along the MRGO. Pls.’ Reply

Br. Opp’n, Ex. 56 at 46–47 (U.S. Army Corps of Engineers, MRGO Studies). The proposed shoreline protections

projects had an estimated cost of $45 million to benefit 495 acres of land, and the constructed hydrologic restoration

projects cost $2.6 million and benefited 889 acres. Id.

33

See supra Section VI.b.

- 30 -

alleged taking of their land lacked the permanency required to trigger the six-year statute of

limitations. Banks, 314 F.3d at 1309–10.

The evidence the Court references for projects and reports on the MRGO are all publicly

available documents available to plaintiffs at the time of publication. Such evidence may have,

therefore, informed plaintiffs of the uncertainty as to the alleged government taking. In Banks,

the government’s actions created “greater uncertainty [regarding] the Corps’ mitigation plan . . .

[because] the Corps in this case actually performed its mitigation activities for several years

before the filing of this action.” Banks, 314 F.3d at 1309–10. Similarly, here the numerous

studies and recommendations, combined with the previously completed projects in South Lake

Borgne, may demonstrate the government’s commitment to efforts to mitigate the effects of the

MRGO. Although initial erosion occurred shortly after opening the MRGO, a landowner could

reasonably rely on completed projects along Category Two and similar regions of the channel, as

well as public reports and grants related to future projects to provide, redress for the accrued

damage. A landowner who sees projects completed on their property or neighboring property

and has access to comprehensive studies discussing future projects has a far different level of

certainty than a landowner who observes the “Corps neither undertook nor committed itself to

any mitigation.” See Mildenberger v. United States, 643 F.3d 938, 947 (Fed. Cir. 2011)

(explaining “[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”).

The evidence in the record indicates plaintiffs’ claims likely stabilized at some point

between 1983 and 1988. Viewing the evidence in the light most favorable to plaintiffs, however,

stabilization of the plaintiffs’ takings claims related to land on the channel of Category Two

occurred by 1988, when the 1988 Reconnaissance Report was published and the physical

changes should have been apparent. The Court therefore concludes the evidence before it, read

in the light most favorable to plaintiffs, indicates stabilization occurred no later than 1988. To

toll the statute of limitations after the claims have stabilized, proposed or completed mitigation

efforts by the government must create “justifiable uncertainty about the permanency of the

taking,” and plaintiffs must be “aware of [mitigation] plans” during the period of time they were

allegedly justifiably uncertain. Boling, 220 F.3d at 1372. Between 1988 and 2008, the Corps

completed a series of projects specifically seeking to mitigate continued erosion along the banks

of the MRGO. Beyond the completed projects, numerous additional studies and proposed

projects suggested additional mitigation efforts would be completed along the channel. Reading

the evidence of the government’s proposed and completed mitigation efforts in the light most

favorable to plaintiffs, justifiable uncertainty may toll the statute of limitations on plaintiffs’

claims related to land on the channel of Category Two. See id.

B. Marshlands

1. Stabilization Doctrine

The Court next examines the marshland in South Lake Borgne surrounding the channel.

As discussed in Category One, plaintiffs assert saltwater intrusion from the MRGO caused

additional saltwater intrusion into the South Lake Borgne marshlands. See Am. Compl. at ¶ 31.

- 31 -

According to plaintiffs’ amended complaint, this saltwater intrusion killed the natural vegetation

of the marsh, which in turn reduced the volume of root systems and caused land erosion. See Id.

(“[S]altwater from the Gulf of Mexico flows up the MRGO and into the St. Bernard Parish

marshes . . . . This saltwater intrusion kills the natural vegetation of the marsh and the roots of

these dead plants can no longer hold the soil together along the MRGO channel banks . . . . This

process has caused erosion of plaintiffs’ land.”).

The MRGO was completed in 1968, and the environmental effects of the MRGO on the

surrounding marshlands were readily apparent soon after.34 See Day Report at 19. A 2008 study

found between the 1950s and 2000s, the South Lake Borgne region experienced dramatic

hydrological changes represented by the conversion of brackish marsh to higher-salinity salt

marshes, as well as an increase in the area of open water and corresponding decrease in total area

of marshland.35 See id. at 44–45. In 1984, the Corps released a report which noted the

marshland was disappearing at a rate of approximately 21,900 acres per year. See 1984 Initial

Evaluation Study at 60–61. By 1988, the Corps released a report detailing the negative effects of

saltwater intrusion and its effect on “less saline vegetation,” concluding that “[s]altwater

intrusion . . . contributes significantly to marsh loss in the study area.” 1988 Reconnaissance

Report at 27.

Uncertainties of terrain and irregularity of the erosion resulted in plaintiffs’ reasonable

inability to immediately determine the permanency of any alleged taking following completion

of construction of the MRGO in 1968. Stabilization, however, does not require “the progressive

environmental damage [to] stop[]” so long as the “environmental forces have substantially and

permanently invaded the private property . . . .” Boling, 220 F.3d at 1371. Plaintiffs’ 15 June

2020 “list of details found in the record” references a study conducted by the Corps titled the

“USACE Louisiana Coast Area, Louisiana, Land Loss and Marsh Creation, Initial Evaluation

Study,” which was published in November 1984. See Pls.’ Paper at 3 (citing 1984 Initial

Evaluation Study). The study in part explicitly envisions the creation of “approximately 5,000

acres” of marshland in Category Two through the beneficial use of materials dredged from the

MRGO. See 1984 Initial Evaluation Study at 85. This report may indicate the government was

aware of the physical ramifications of the MRGO on the marshlands of Category Two and,

similarly, a reasonable landowner would have been aware of saltwater from the MRGO

“permanently invad[ing] the private property” and causing erosion of the marshlands. If this is

the case, plaintiffs’ claims may have stabilized as early as 1984. See Fallini, 56 F.3d at 1382

(noting “[i]t is not necessary that the damages from the alleged taking be complete and fully

calculable before the cause of action accrues . . . [so long as] the ‘permanent nature’ of the taking

was evident”). By at least the time the 1988 Reconnaissance Report was released, however,

landowners should have both been visually aware of the physical erosion to the land and made

34

“Greater than 12,000 acres of the swamps . . . South Lake Borgne and other units were killed shortly after the

opening of the MRGO . . . .” Day Report at 19.

35

“South Lake Borgne [in the 1950s] is listed as having brackish (23,773 acres) and salt (1041 [sic] acres) marsh,

and swamp (668 acres). No acreage of fresh or intermediate marsh was listed for the South Lake Borgne unit. . . .

The presence of cypress trees out to the edge of Lake Borgne indicate soil salinities in the fresh to intermediate

range (cypress cannot tolerate salinities of more than 3-5 ppt).” Id. at 44. In the 1960s “South Lake Borgne has less

intermediate (739 acres) and more brackish (19,346) marsh and 294 acres of swamp.” Id. at 45. By 2000, “South

Lake Borgne had less intermediate (24 acres) and brackish (7,659) marsh and more salt marsh (9,549 acres).

Swamp had been reduced to 5 acres.” Id. at 44.

- 32 -

aware of the changes to the land by the government’s report itself. Plaintiffs’ takings theory is

based on saltwater intrusion from the MRGO leading to increased erosion of plaintiffs’ land.

Am. Compl. at ¶ 31. By 1988, publicly available reports and studies made clear “[e]rosion and

disintegration of the banks of the MR-GO has created many additional routes for saltwater to

intrude into formerly less saline interior marshes” and therefore “salinity in the marshes has

increased significantly” over the prior 20 years. 1988 Reconnaissance Report at 27.

Based on the evidence currently before the Court, plaintiffs’ claims likely stabilized at

some point between 1984, when the Corps issued a report noting the value of beneficial dredge

materials in creating thousands of acres of marshland, and 1988, when the government published

the 1988 Reconnaissance Report noting the changes in salinity and corresponding erosion in the

surrounding areas. Viewing the evidence in the light most favorable to plaintiffs, however,

stabilization of plaintiffs’ claims occurred by 1988 at the latest. For the purpose of the

government’s motion for summary judgment, absent the justifiable uncertainty doctrine tolling

the statute of limitations, the six-year statute of limitations period for plaintiffs’ claims related to

the marshland of Category Two expired in 1994. See Applegate, 25 F.3d at 1583.

2. Justifiable Uncertainty

For landowners to be “justifiably uncertain” as to the permanency of the alleged taking,

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.” Banks, 314

F.3d at 1309 (citing Applegate, 25 F.3d at 1583). A project aimed at mitigating damages would

constitute justifiable uncertainty as to the permanency of the alleged taking, thus tolling the

statute of limitations, if it was implemented after the date on which the Court deems plaintiffs

alleged taking to have “stabilized.” Id. To determine whether proposed or actual mitigation

efforts by the Corps made landowners justifiably uncertain as to the permanency of the alleged

takings of land along the marshland of Category Two and therefore tolled the statute of

limitations, the Court twice ordered plaintiffs to provide supplemental briefing listing proposed

and completed projects affecting the justifiable uncertainty analysis of Category Two, and the

government had an opportunity to respond to each. See Order, ECF No. 152; Order, ECF No.

160. All of the projects plaintiffs provided the Court as applicable to the justifiable uncertainty

analysis are considered in the Court’s analysis.36

As early as 1992, the Corps began taking steps to mitigate damage to marshlands in

South Lake Borgne, primarily by placing dredged material on the north bank of the MRGO so as

“to develop, restore, and nourish wetlands.”37 Pls.’ Mot. for Partial Summ. J., Ex. 12 at 3 (Letter

from Colonel Kenneth H. Crow to Senator John Breaux). From 1992 to 2004, the Corps detailed

in various environmental assessments (“EAs”) and environmental impact statements (“EISs”) the

placement of beneficial dredged materials in the marshlands in South Lake Borgne.38

36

See supra Section VII.A.2.

37

A letter from Colonel Kenneth H. Crow to Senator John Breaux detailed the Corps’ 20-year Long Term Disposal

Plan for “the placement of dredged material on the north bank of the MR-GO to develop, restore and nourish

wetlands.” Pls.’ Mot. for Partial Summ. J., Ex. 12 at 3 (Letter from Colonel Kenneth H. Crow to Senator John

Breaux).

38

In 1992, EA #162 noted “[m]aterial removed during routine channel maintenance would be used to enhance and

create approximately 555 acres of marsh and shallow open water,” which “would result in the creation and

- 33 -

Throughout the early 1990s, the Corps began to move forward with additional plans and projects

directed to the goal of “no overall net loss of the Nation’s remaining wetlands base . . . .”39 1990

WRDA at § 307(a). In the late 1990s, and stretching into the early 2000s, the Corps continued

implementing and planning various projects to further mitigate any alleged negative effects to

the marshlands.40 Following Hurricane Katrina in 2005, additional projects were contemplated

and implemented, which affected the marshland areas of South Lake Borgne.41 As the Federal

Circuit has noted, both proposed projects and actual mitigation efforts by the government go

directly to whether the landowners were “justifiably uncertain” as to the permanency of the

alleged taking. Banks, 314 F.3d at 1309–10.

The marshlands habitat in South Lake Borgne experienced significant fluctuations during

the time period overlapping with various projects performed and proposed by the Corps.42

Between 1988 and 1997, certain areas of marshland cycled between classification as brackish

marsh, intermediate marsh, and saline marsh.43 In another area of marshland in South Lake

nourishment of wetlands and associated wildlife habitat.” Pls.’ Mot. for Partial Summ. J., Ex. 21 at 1 (EA #162:

Marsh Enhancement/Creation – Mile 23.0 to 27.0). In 1998, EA #269 the Corps established additional disposal

areas “from Miles 36.5 to 32 and Miles 49.0 to 46.5 of the MR-GO” and emphasized how the material would be

placed into the disposal sites “in a manner conducive to wetland development, creating and/or restoring wetlands

each cycle.” Pls.’ Mot. for Partial Summ. J., Ex. 25 at 1 (EA # 269 and EA # 269-A: South of Lake Borgne

Additional Disposal Areas). In 2000, EA #269-B detailed placement of dredged material behind rock retention

dikes. See Pls.’ Mot. for Partial Summ. J., Ex. 26 at 1 (EA #269-B: Additional Dispersal Areas Plus Deflection

Dike and Flotation Channels). In 2001, EA #277 designated new disposal areas for beneficial use of dredged

material and noted “[a]ll material would be placed into the proposed disposal sites . . . in a manner conducive to

wetland development, creating and/or restoring wetlands each cycle.” Pls.’ Mot. for Partial Summ. J., Ex. 30 at 1

(EA #277: Shell Beach Disposal Areas). In 2004, EA #354 designated additional disposal areas utilized “to protect

the shoreline from erosion at proposed disposal sites” through the “beneficial use of dredged material.” Pls.’ Mot.

for Partial Summ. J., Ex. 33 at 1 (EA #354: Additional Disposal Area Designation Miles 66.0 to 49.0).

39

See supra Section VI.b.

40

In 1999, the Corps conducted three projects along the MRGO to create 76 acres of wetlands with materials

dredged from the channel. See Am. Compl. at ¶ 53. In 2004, the Corps proposed building 38 miles of rock

breakwaters along the banks of the MRGO to prevent the merger of the MRGO and Lake Borgne. See Pls.’ Mot. for

Partial Summ. J., Ex. 45 at 3 (U.S. Army Corps of Engineers, Louisiana Coastal Area (LCA), Louisiana, Ecosystem

Restoration Study (November 2004)). The Corps noted the construction of rock breakwaters along the banks of the

MRGO and southern shore of Lake Borgne “has been effectively used . . . to prevent bankline retreat and protect

large areas of estuarine wetlands from further erosion and degradation.” Id. at 2. The rock breakwaters further

“may also facilitate future wetland creation using dedicated dredging and/or beneficial use of dredged material . . . .”

Id. Additionally, in 2004, the Corps presented in a Power Point the Breaux Act Projects, with four projects included

in the PED and two constructed projects. See Pls.’ Reply Br. Opp’n, Ex. 56 at 46–47 (U.S. Army Corps of

Engineers, MRGO Studies). The PED projects included two shoreline protection projects along Lake Borgne and

the MRGO, with an estimated cost of $45 million to benefit 495 acres of land, and the constructed projects included

two hydrologic restoration projects in the same area, which cost $2.6 million and benefited 889 acres. Id.

41

See supra Section VI.b.

42

From the 1950s to the 2000s, in the “South Lake Borgne Unit, there was a small change in the area of

intermediate marsh (24 acres) and swamp (-554 acres). There was a dramatic loss of brackish marsh (-16,115 acres)

due to both construction of the MRGO canal as well as conversion of salt marsh due to higher salinity. Water area

also increased (12,283) due to both MRGO canal construction and conversion of marsh to open water.” Day Report

at 46.

43

“[H]abitat change was considerable between 1988 and 1997. Brackish marsh decreased from 61.5% of the

property to 33% due primarily to conversion to saline marsh, which comprised 15% of the property. The increase in

water habitat (32.5% of the property) appears to have resulted from both interior pond formation and from erosion

along the MRGO. Intermediate marsh habitat comprised 7% of the property, most likely arising from the freshening

effect of the violet siphon.” 2018 Mendelssohn Report at 4. Yet just four years later, in 2001, “saline marsh had

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Borgne, brackish marsh steadily decreased, open water increased, and salt marsh experienced

fluctuations until 2013, when it exponentially increased.44 Yet another area of South Lake

Borgne experienced expansion of salt marshes from 1988 to 1997, but then experienced a

disappearance of salt marsh in a portion of the property from 2001 to 2013.45 A landowner

observing these fluctuations in salinity could reasonably attribute the hydrological changes to the

implementation of various Corps projects aimed at mitigating any negative effects to the

marshlands. Banks, 314 F.3d at 1309.

Based on the evidence before the Court, stabilization of plaintiffs’ claims related to the

marshlands of Category Two may have occurred at some point between 1984, when the Corps

issued a report on the use of beneficial dredge materials in the surrounding marshland, and 1988,

when the government published the 1988 Reconnaissance Report noting changes in the salinity

of Category Two. Viewing the evidence in the light most favorable to plaintiffs, therefore,

stabilization of the plaintiffs’ takings claims in the marshlands of Category Two occurred by

1988, when the 1988 Reconnaissance Report was published and the physical changes should

have been apparent to landowners. The Court therefore concludes the evidence before it, read in

the light most favorable to plaintiffs, indicates stabilization occurred no later than 1988. To toll

the statute of limitations after the claims have stabilized, proposed or completed mitigation

efforts by the government must create “justifiable uncertainty about the permanency of the

taking,” and plaintiffs must be “aware of [mitigation] plans” during the period of time they were

allegedly justifiably uncertain. Boling, 220 F.3d at 1372. The record before the Court reveals

numerous examples of beneficial dredge material used by the Corps to facilitate wetlands

creation in the marshlands of Category Two during the 1990s and 2000s. Reading the evidence

of the government’s proposed and completed mitigation efforts in the light most favorable to

plaintiffs, justifiable uncertainty may toll the statute of limitations on plaintiffs’ claims related to

land on the marshlands of Category Two. See id.

VIII. Analysis of Category Three – MRGO Spoil Bank

Category three, the MRGO Spoil Bank corresponds to geographical “Subunit 32” of

Exhibit 1 contained in the 2012 Feasibility Report. See 2012 Feasibility Report at 2-58. Subunit

32 is composed of dredged material placed along the southern shore of the MRGO, separating

converted back to brackish marsh, covering 49% of the property, with little intermediate marsh (0.5%) and water

comprising 39% of the property.” Id.

44

In Biloxi West, from 1968 to 2013, brackish marsh decreased from 1,926 acres to 235 acres. See 2017

Mendelssohn Report at 53. Open water increased from 296 acres in 1978 to 591 acres in 2013. Id. Salt marsh

decreased from 211 acres in 1949 to zero acres in 1968–1978 but increased to 640 acres in 1988. Id. Salt marsh

decreased to 578 acres in 2007 but jumped to 1,452 acres in 2013. Id. “The increase in salt marsh habitat in [Biloxi

West] proceeded over time from the south as the salt marsh on the north side of the MRGO expanded in a northwest

direction.” Id. at 30.

45

For the Borgnemouth property, the level of brackish marsh steadily increased up until sometime between 1978

and 1988; whereupon a sharp drop in the acreage of brackish marsh was experienced until sometime between 1997

and 2001. Again, somewhere between 2001 and 2007, however, the level of brackish marsh again dropped until the

study concluded in 2013. See 2017 Mendelssohn Report at 54. The level of salt marsh also underwent significant

fluctuation. Following construction of the MRGO, all salt marsh disappeared somewhere between 1978 and 1988.

By 1988, however, a significant area of land (1,283 acres) became salt marsh. This level steadily dropped until

ultimately reaching zero again by 2007, only to increase again by 2013 to more than 700 acres. Id.

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the MRGO channel from Subunit 13 and 23.46 Subunit 32 includes the Vincent Marshlands,

Livaudais, Borgnemouth, Lake Eugenie, and Biloxi properties. See JSR, ECF No. 154 at 2.

A. Stabilization Doctrine

As in Category Two, plaintiffs’ properties are situated on the south side of the MRGO

channel banks across from South Lake Borgne. Plaintiffs present a similar theory of takings as

for land along the channel in the South Lake Borgne region, arguing the dredging and operation

of the MRGO caused erosion along the channel banks, widening the channel width to over 2,000

feet. Am. Compl. ¶ 30. The construction of the MRGO did not cut directly through the

subunit—unlike the Central Wetlands and South Lake Borgne regions—because, until the

creation of the channel, the MRGO Spoil Bank did not exist as an individual subunit. Instead,

the Corps created the MRGO Spoil Bank from material dredged from the MRGO.47 Prior to

dredging, “[t]he United States obtained [from plaintiffs] . . . rights of entry for construction and

spoil disposal that extended 1500 feet from the channel’s original centerline,” which it used to

create the MRGO Spoil Bank. Gov. Mot. for Summ. J. at 9. While the government received

servitudes extending up to 1,500 feet from the centerline of the channel for construction and

spoil disposal, eventually the entirety of the area granted in the servitudes was being utilized only

for the channel itself. Id. at 36 (citing 1988 Reconnaissance Report at 26, 30).

As noted by plaintiffs in their supplemental briefing, by at least 1983 the Corps

“constructed foreshore protection test sections” along the banks of Category Three consisting of

“armor coating” the shoreline with various stone and concrete configurations. See Pls.’ Supp.

Paper at 29. Projects related to testing the effectiveness of various foreshore protections may

indicate the government was aware of erosion of plaintiffs’ land along the banks of the channel

at least by 1983. If this is the case, it may similarly be true erosion along the banks of the

MRGO was such “that the permanent nature of the taking is evident and the extent of the damage

is reasonably foreseeable” to landowners. Boling v. United States, 220 F.3d 1365, 1371 (Fed.

Cir. 2000). The 1988 Reconnaissance Report, found the “land cut of the MRGO has increased

from [a top width of] 650 feet to an average of 1,500 feet” and “the unleveed reaches are

retreating at varying rates from five to over 40 feet per year.” 1988 Reconnaissance Report at

26, 30. Thus, while the government received servitudes extending up to 1,500 feet from the

centerline of the channel for construction and spoil disposal, the entirety of the area granted in

the servitudes was now being utilized only for the channel itself, and the average width of the

channel exceeded the original channel footprint by more than 230%. Stabilization does not

require “the progressive environmental damage [to] stop[]”; this nearly 1,000-foot increase in the

width of the channel constitutes a substantial and permanent invasion of “private property such

that the permanent nature of the taking is evident and the extent of the damage is reasonably

46

“Beneficial use” dredge material is “any use which would protect, enhance, or provide a platform for the

restoration of vegetated wetlands.” Coast 2050 Report at 130. The Coast 2050 report emphasizes “[b]eneficial use

of dredged material resources . . . can take on any of several forms[,]” with “[s]ediments represent[ing] one of the

most important resources for building wetlands.” Id. at 129–30. Dredging activities in Louisiana “account for the

removal and redeposition of 90 to 120 million cubic yards of sediment annually,” and the Coast 2050 report notes it

“has been the USACE’s practice that, as long as the effort to achieve beneficial use is within the project’s base plan

or federal standard cost, the USACE can and will make beneficial use of dredge material resources.” Id.

47

From 1950 to 1960, the Central Wetlands subunit received 9,191 acres of spoil material while the Jean Louis

Robin received 12 acres. See Day Report at 57.

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foreseeable.” Boling, 220 F.3d at 1371; see also id. at 1373 (“the takings claims accrued when

the erosion has substantially encroached the parcels at issue and the damages were reasonably

foreseeable.”).

The uncertainties of the local terrain and difficulty in determining the location of the

government’s easement meant plaintiffs’ claims did not immediately stabilize upon completion

of the MRGO. Based on the evidence currently available before the Court, stabilization of

plaintiffs’ claims may have occurred as early as 1983 when the government began working on

foreshore protection projects intended to prevent further bank erosion. See Fallini v. United

States, 56 F.3d 1378, 1382 (Fed. Cir. 1995) (noting “[i]t is not necessary that the damages from

the alleged taking be complete and fully calculable before the cause of action accrues . . . [so

long as] the ‘permanent nature’ of the taking was evident”). Viewing the evidence in the light

most favorable to plaintiffs, however, by at least 1988 the dramatic growth of the channel and

public release of the 1988 Reconnaissance Report put the landowners on adequate notice for any

alleged takings claim to stabilize. Therefore, for the purposes of the cross-motions for summary

judgment, absent justifiable uncertainty tolling the statute of limitations, the six-year statute of

limitations period for plaintiffs’ claims for land in Category expired no later than 1994. See

Applegate v. United States, 25 F.3d 1579, 1583 (Fed. Cir. 1994).

B. Justifiable Uncertainty

For landowners to be “justifiably uncertain” as to the permanency of the alleged taking,

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.” Banks v.

United States. 314 F.3d 1304, 1309 (Fed. Cir. 2003) (citing Applegate, 25 F.3d at 1583). A

project aimed at mitigating damages would constitute justifiable uncertainty as to the

permanency of the alleged taking, thus tolling the statute of limitations, if it was implemented

after the date on which the Court deems plaintiffs alleged taking to have “stabilized.” Id. at

1309. To determine whether proposed or actual mitigation efforts by the Corps made

landowners justifiably uncertain as to the permanency of the alleged takings in Category Three

and therefore tolled the statute of limitations, the Court twice had plaintiffs provide supplemental

briefing listing proposed and completed projects affecting the justifiable uncertainty analysis of

Category Three, and the government had an opportunity to respond to each. See Order, ECF No.

152; Order, ECF No. 160. All of the projects plaintiffs provided the Court as applicable to the

justifiable uncertainty analysis are considered in the Court’s analysis.48

Between 1983 and 2004, the Corps completed numerous projects constructing various

forms of foreshore protections and placing beneficial use dredge material along the banks of the

48

Plaintiffs’ 15 June 2020 supplemental paper listed the following completed or proposed items as relevant to a

justifiable uncertainty analysis for Category Three: The Louisiana Coastal Wetlands Restoration Plan of 1993; the

Mississippi River Gulf Outlet Ecosystem Restoration Plan; and proposed and completed projects to install concrete

bank protection at different points along the channel. See Pls.’ Paper at 5–6. Plaintiffs’ 30 June 2020 supplemental

paper listed the following completed or proposed items as relevant to a justifiable uncertainty analysis for Category

Three: the construction of various “foreshore protection test sections” and eventually over 45 miles of foreshore

protection along the MRGO spoil bank; the MRGO Back Dike Marsh Protection Project; and a proposal to provide

over 30 miles of additional foreshore protection. See Pls.’ Supp. Paper at 28–30.

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MRGO.49 According to the government’s own reports, the placement of dredge material in time

caused the growth of new permanent vegetation and creation of new marshland habitat at the

dredge material deposits.50 The regrowth of marshland from saline marshes and open waters, as

confirmed by the government’s own expert report and stemming directly from the government’s

depositing of beneficial use dredge material, could have left landowners in Category Three

justifiably uncertain as to the permanency of the alleged taking of the surrounding land. See

Boling, 220 F.3d at 1372.

The government argues the work “performed to reinforce the federal levee system on the

southern/western banks of the MRGO” should not “be interpreted as a promise or action to

reverse or remediate the historic erosion that has taken place on any particular [p]laintiff’s

property.” See Gov.’s Resp. to Pls.’ Supp. Paper at 9. As demonstrated in numerous studies and

Corps’ proposals, however, the Corps used dredged material throughout the length of the channel

for the benefit of the surrounding property owners. When feasible, the Corps worked with

property owners to find the most beneficial use for dredged materials.51 Rather than for the sole

purpose of keeping the banks of the MRGO upright, the beneficial use of dredge materials was

likely recognized as being important for “a long-term goal to increase the quality and quantity of

49

EA #38, dated in 1983, detailed “[w]ork constituting of constructing six additional foreshore protection test

sections along 0.45 miles of the [MRGO].” Pls.’ Mot. for Partial Summ. J., Ex. 13 at 1 (EA #38: MRGO Foreshore

Protection Test Section). In 1985, EA # 47 detailed “[w]ork consist[ing] of placing 30-inch graded stone on a 9-inch

shell bedding to provide foreshore protection,” with the project “located on the south bank of the [MRGO] from the

Bayou Bienvenue Control structure to the end of the Chalmette Loop Hurricane Protection Levee.” Pls.’ Mot. for

Partial Summ. J., Ex. 14 at 1 (EA #47: MRGO Foreshore Protection). In 1988, the Bank Reconnaissance Report

detailed completed “[f]oreshore protection along 13 miles along the south bank from Bayou Bienvenue to the end of

the leveed reach.” 1988 Reconnaissance Report at 14. In 1996, EA #244 detailed the completion of “protection and

preservation of existing vegetated wetlands . . . on the existing south bank disposal area for the [MRGO] from

approximately mile 36.0 to mile 30.0. Closure/repair of approximately 3,100 linear feet of back dike will prevent

approximately 900 acres of existing fresh marsh from draining and becoming scrub-shrub habitat.” Pls.’ Mot. for

Partial Summ. J., Ex. 22 at 1 (EA #244: MRGO Disposal Area Marsh Protection (Back Dike)). In 2004, EA #411

detailed a proposal for installation of articulated concrete mattress test sections along the bank of the MRGO. Pls.’

Mot. for Partial Summ. J., Ex. 36 at 1 (EA #411: Installation of Articulated Concrete Mattressing, Mile 37.4 to

36.5).

50

The government’s 2017 Mendelssohn expert report acknowledged “the deposition of MRGO dredge material on

the southern flank of the MRGO converted 551 ac of salt marsh and 147 ac of water to MRGO dredge habitat . . . .”

2017 Mendelssohn Report at 17. Marsh habitat can be “created by the deposition of dredged material, which

becomes vegetated over time by either marsh or terrestrial plants depending on the surface elevation of the dredged

material relative to the local tidal amplitude.” Id. The Coast 2050 report provides additional evidence of the effects

beneficial dredge materials can have on wetlands restoration efforts, stating the Corps and State of Louisiana “have

used dredged material resources to create over 7,000 acres of subaerial land which has become vegetated wetlands.”

Coast 2050 Report at 130.

51

It “has been the USACE’s practice that, as long as the effort to achieve beneficial use is within the project’s base

plan or Federal standard cost, the USACE can and will make beneficial use of dredge material resources.” Id.; see

also 1990 WRDA at § 307(a) (stating the Corps shall have “an interim goal of no overall net loss of the Nation’s

remaining wetlands base . . . and a long-term goal to increase the quality and quantity of the Nation’s

wetlands . . . .”). The Coast 2050 report emphasizes both “[t]he increased beneficial use of this dredged material

resource must be an integral part of the plan to reduce Louisiana’s yearly coastal land loss” and how “the potential

for the beneficial use of dredged material to address Louisiana’s coastal land loss is significant.” Id. at 129–30. The

1990 WRDA, however, does not contain any specific language related to dredge material being used to rebuilt

marshland around the MRGO. See generally 1990 WRDA.

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the Nation's wetlands” and therefore furthering the Corps’ goal of “no overall net loss of the

Nation’s remaining wetlands base . . . .” 1990 WRDA at § 307(a).52 The use of dredged

materials for the restoration of surrounding wetlands in turn likely led to landowners to be

“justifiably uncertain about the permanency of the erosion and the taking . . . .” Applegate, 25

F.3d at 1583.

Furthermore, Category Three is located in the same geographical area as Category Two,

and those studies and proposals related to the MRGO’s erosive effects considered in the Court’s

Category Two justifiable uncertainty analysis also apply here. The studies and proposals

applying to both Category Two and Category Three include studies on erosion, potential

restoration plans, proposed projects by the Corps to restore the MRGO to its pre-MRGO state,

and legislation awarding Congressional funds for restoration efforts.53 Although some studies

never resulted in final projects, others proposals and legislative acts, including multiple renewals

of the WRDA, received congressional funds and led to subsequent projects, at least in part, along

the MRGO. Following Hurricane Katrina in 2005, additional projects were contemplated, and

Congressional funds awarded to restoration of the MRGO.54 While some of the reports and

studies did not focus specifically or exclusively on the MRGO Spoil Bank, plaintiffs owning

property situated along the channel, including in Category Three, could justifiably rely on

proposed restorative efforts implemented at other points along the channel to conclude an alleged

taking of their land lacked the permanency required to trigger the six-year statute of limitations.

See Applegate, 25 F.3d at 1583. The current factual record does not clarify whether landowners

were aware of the Corps’ overall restorative efforts when it pertained to their individual property

52

The language of the WRDA, combined with projects affecting Category Three proposed or completed by the

Corps, may have led landowners to be justifiably uncertain as to whether the land would be repaired in pursuit of the

goal of “no overall net loss of the Nation’s wetlands.” Id. There is still uncertainty in the record, however,

regarding whether the specific landowners affected by the alleged taking knew of the 1990 WRDA and whether it

affected how they viewed specific projects proposed or completed by the Corps affecting Category Three. See

Boling, 220 F.3d at 1372.

53

See supra Section VII.

54

See supra Section VII.

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in a specific subunit.55 Similar statements were made by another landowner within the subunit.56

Boling, 220 F.3d at 1372 (stating the doctrine of justifiable uncertainty depends in part on

whether plaintiffs invoking the doctrine were aware of the mitigation efforts during the period

they claim to be justifiably uncertain).

Based on the evidence before the Court, stabilization of plaintiffs’ claims may have

occurred at some point between 1983 and 1988. Viewing the evidence in the light most

favorable to plaintiffs, however, stabilization of the plaintiffs’ takings claims in Category One

occurred by 1988, when the 1988 Reconnaissance Report was published and the physical

changes should have been apparent. The Court therefore concludes the evidence before it, read

in the light most favorable to plaintiffs, indicates stabilization occurred no later than 1988. To

toll the statute of limitations after the claims have stabilized, proposed or completed mitigation

efforts by the government must create “justifiable uncertainty about the permanency of the

taking,” and plaintiffs must be “aware of [mitigation] plans” during the period of time they were

allegedly justifiably uncertain. Boling, 220 F.3d at 1372. The record highlights numerous

foreshore protection projects completed along the banks of the MRGO and directly affecting

erosion experienced in Category Three. Furthermore, materials dredged from the MRGO were

used for the construction of wetlands in the surrounding areas, and the government issued

55

During a deposition in this case, government counsel asked the corporate representative for the Livaudais and

Borgnemouth properties:

Q: “[Y]ou testified that [the] MRGO had eroded into property owned by the Borgnemouth and

Livaudais Companies . . . . Do you recall, at any time, the Corps of Engineers promising that it

would build bank stabilization measures, or any type of revetments, that would restore the MRGO

channels to the borders that you testify appear in the top portion of Exhibit 13?

...

A: You’re asking me if I, personally, heard the Corps of Engineers tell us that they would restore it

back to the original channel size?

Q: That’s right.

A: No.

Q: Do you ever recall the Corps of Engineers embarking upon a project that whose purpose it was

to restore the channel to its original size?

A: Not to my knowledge.

Q: Okay. Do you recall the Corps of Engineers ever implementing, or promising to you, or your

father, or others at your company, to remediate all of the environmental damage, and erosion, that

you allege is depicted in the bottom half of Exhibit 13?

A: I’m not sure if I know that answer, or not.

Gov.’s Reply, Ex. 2at 183:12–25, 184:1–24.

56

In the deposition of the corporate representative for Vincent properties, government counsel asked:

Q: What are you aware of in terms of promises from the United States or acts by the United States

that are actions you interpret to mitigate or remediate the injuries to your property at issue in this

lawsuit?

A: Only thing I could relate to is my experience in my being in the area fishing where you see the

Corps of Engineers was working on the -- trying to install barriers on the banks of the MRGO and

also . . . . That continues sporadically over the years. They would be out there doing a project, and

then they would stop, and I guess it related to funding, and occasionally you read in the paper where

they announced some project happening, and then you would be out there and notice it.

Gov.’s Reply, Ex. 4 at 133:17–25, 134:1–9.

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numerous reports and studies involving additional proposals for mitigation projects. Reading the

evidence of the government’s proposed and completed mitigation efforts in the light most

favorable to plaintiffs, justifiable uncertainty may toll the statute of limitations on plaintiffs’

claims related to Category Three. See id.

IX. Analysis of Category Four – Biloxi Marshes Interior

Biloxi Marshes Interior corresponds to geographical “Subunit 07” of Exhibit 1 contained

in the 2012 Feasibility Report. See 2012 Feasibility Report at 2-58. Subunit 07 includes the

Biloxi57 and Lake Eugenie properties.58 See JSR at 2. 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.” 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 2012 Feasibility Report at 2-58. The Biloxi Marshes Interior

subunit is located to the north of the MRGO and borders Lake Borgne’s shoreline. See id.

A. Stabilization Doctrine

As with the marshlands of Categories One and Two, plaintiffs’ takings theory for the

Biloxi Marshes Interior is premised on gradual erosion of land due to saltwater intrusion. See

Am. Compl. at ¶ 31. Documenting saltwater intrusion, a 1999 historical study details that prior

to MRGO opening, the Biloxi Marshes Interior was primarily brackish and saline marsh, with a

small portion classified as fresh or intermediate marsh.59 See Day Report at 54. According to

1978 measurements, the only hydrological change Biloxi Marshes Interior experienced since

MR

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