Ministerio Roca Solida, Inc. v. United States

In the United States Court of Federal Claims

)

MINISTERIO ROCA SOLIDA, INC., )

)

Plaintiff, )

) No. 16-826L

v. ) (Filed: October 25, 2021)

)

THE UNITED STATES OF AMERICA, )

)

Defendant. )

)

Matthew S. Owen, Kasdin M. Mitchell, Erin E. Cady, Gavin R. Tisdale, and Neil A. Joseph,

Kirkland & Ellis LLP, Washington, DC, for Plaintiff.

Davené D. Walker, Brent Allen, Trial Attorneys, and David A. Harrington, Assistant Chief,

Natural Resources Section, Environmental and Natural Resources Division, U.S. Department of

Justice, Washington, DC, for Defendant, with whom was Jean E. Williams, Acting Assistant

Attorney General.

OPINION AND ORDER

Kaplan, Chief Judge.

The Plaintiff in this Fifth Amendment takings case, Ministerio Roca Solida (“the

Ministry”), has since late 2006 owned a forty-acre parcel of land in Nevada that lies within the

boundaries of the Ash Meadows National Refuge (“Ash Meadows” or “the Refuge”). In 2008 the

Ministry opened a church camp and retreat on the northeastern corner of the property. It named

the camp the “Patch of Heaven.”

Ash Meadows is located within the historic floodplain of the Carson Slough. It is home to

many native plants and animals and contains one of the greatest concentrations of endemic

species anywhere in the United States. Since at least the mid-1990s, it had been a goal of the

United States Fish and Wildlife Service (“FWS”) to restore the habitat of two endemic species of

fish—the pupfish and the speckled dace. Restoration efforts were needed because private

property owners who lived on the land before the Refuge was established in 1984 had diverted

spring waters from their natural channels into irrigation ditches that they used for agricultural

purposes. Because irrigation ditches do not supply a good habitat for fish, FWS planned a series

of projects to fill in irrigation ditches and return spring waters back to their historic paths. One

such project was the Fairbanks and Soda Springs restoration project, which was begun in 2009

and substantially completed in 2010.

It is undisputed that as a result of the project, the Patch of Heaven lost one of its most

attractive features—the supply of spring water that had flowed through the property in a man-

made ditch and which the Ministry had used for recreational purposes and to perform baptisms.

The spring water was rerouted out of the man-made ditch that led to the camp and into to a

“restoration” channel located on Refuge property that was upstream and to the east of the camp.

To make matters worse, in December 2010, just a few months after the bulk of the work

on the restoration channel was completed, the area experienced five or six days of very heavy

rainfall. Stormwater coming down from the upper watershed of the Carson Slough flooded the

Patch of Heaven, damaging camp buildings, impeding access to the property, and sweeping away

grass, trees, and other vegetation. From the Ministry’s perspective, the loss of the spring water

combined with the destructive flooding in December 2010 transformed its oasis, or “Patch of

Heaven,” into just another dry desert landscape, covered in silt and devoid of greenery.

In its original complaint, the Ministry asserted that the construction of the restoration

channel had resulted in a Fifth Amendment taking of vested water rights. In a November 20,

2019 decision, the Court entered summary judgment in favor of the government as to that claim

because it found that the Ministry did not prove that it had vested rights to the beneficial use of

the water that flowed through the irrigation ditch and which FWS had rerouted away from its

property. See Opinion and Order (“Op. and Order”), ECF No. 56.

The remaining claim before the Court is one for the taking of the Ministry’s property by

recurrent flooding. The Ministry alleges in its complaint that the construction of the restoration

channel caused the destructive flooding that occurred in 2010, as well as subsequent floods that

took place in 2015 and 2016. Specifically, it alleges that the berm FWS installed upstream of the

Ministry’s property to divert spring water into the restoration channel blocked flood waters from

taking a natural path, one that would have discharged them on the western side of the Ministry’s

property, away from the church camp. Instead, according to the Ministry, the floodwaters were

rerouted to the east at an elevation above the church camp, causing them to flow into the

northeast section of the property where the camp is located. The Ministry further argues that,

under the multi-factor analysis set forth in Arkansas Game & Fish Commission v. United States

and its progeny, the recurrent flooding allegedly caused by the project constitutes a total physical

taking of its property, or at least the taking of a flowage easement, for which it is entitled to just

compensation. See 568 U.S. 23, 38–39 (2012).

The Court held a four-day trial on the Ministry’s flood-related takings claim in Las

Vegas, Nevada, the week of May 11, 2021. At the trial, the Ministry presented the testimony of,

among others, Pastor Victor Fuentes, the Ministry’s founder, as well as Ronald Matheny, the

previous owner of the property. Both Pastor Fuentes and Mr. Matheny testified that, until FWS

installed the restoration channel, they had never observed any significant flooding on the section

of the property where the Patch of Heaven is located.

The Ministry and the government also presented the testimony of expert witnesses. Each

retained a hydrologist to opine on the cause of the floods that occurred at the church camp in

2010, 2015, and 2016. In addition, the government presented the testimony of a meteorologist

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who offered his opinion about the weather conditions prevailing in the area at the time of the

flooding events.

The Court has carefully considered all of the evidence as well as the parties’ arguments.

For the reasons set forth below, the Court finds that the Ministry failed to shoulder its burden of

proving that the restoration project caused significant flooding of the church camp that would not

have occurred but for the installation of the restoration channel. The Court therefore enters

judgment in favor of the government with regard to the Ministry’s takings claim. 1

FINDINGS OF FACT 2

The Ministry’s Purchase of the Property

Pastor Victor Fuentes and his wife, Mrs. Annette Fuentes, are the founders of Ministerio

Roca Solida, a non-profit, non-denominational Christian church incorporated under the laws of

the State of Nevada. Trial Tr. (“Tr.”) vol. 1, 15:1–5, 54:24–55:3, ECF No. 124; see also Op. and

Order at 2. In 2006, after hearing two members of his Bible study group complain of their

inability to find a suitable program in the Las Vegas area to help their son who was struggling

with alcoholism, Pastor Fuentes decided to search for property nearby that the Ministry could use

for a church camp and retreat. Tr. vol. 1, 55:17–56:11. He wanted to find a place “close to

nature” where campgoers could “relax,” “calm down,” and “be ministered.” Id. 56:7–11.

To those ends, another member of the Pastor’s Bible study group alerted him to a

forty-acre parcel of land owned by Ronald Matheny that was within the boundaries of the Ash

Meadows National Refuge. Id. 57:3–10; Plaintiff’s Ex. (“PX”) 269. The property was then, and

remains, one of the few privately owned parcels located entirely within the Refuge’s boundaries.

Joint Stip. of Facts (“JS”) no. 5, ECF No. 106; PX 451 (map of Ash Meadows National Refuge).

Mr. Matheny had purchased the land in January 1997 for the price of $60,000. PX 269

(quitclaim deed dated January 28, 1997); tr. vol. 1, 168:18–169:6, 177:6–8. At the time he

bought it, the property was “just bare land” and sagebrush. Tr. vol. 1, 170:16–19. Mr. Matheny

planted grass and trees and installed fencing, buildings, and other improvements, as well as water

and sewer systems. Id. 170:20–171:14. He placed structures and fixtures on the property to

1

Because the Court concludes that the Ministry has not met its burden of proving causation, it

does not address the other factors the Supreme Court has identified as relevant to determine

whether recurrent flooding caused by government action rises to the level of a taking. See Ark.

Game & Fish Comm’n, 568 U.S. at 38–39 (explaining that the court should consider: (1) the

duration or frequency of the flooding; (2) whether the flooding is intended or is the foreseeable

result of the government action; (3) character of the land; (4) reasonable investment-backed

expectations; and (5) severity of the interference with property interests). In addition, the Court’s

factual findings will be limited to those that are relevant to the issue of causation.

2

This section sets forth the Court’s principal findings of fact pursuant to Rule 52(a) of the Rules

of the Court of Federal Claims (“RCFC”). Other findings of fact and rulings on questions of

mixed fact and law are set out in the Discussion section.

3

replicate an Old West town and he also built a stage for musical entertainment, installed a

campfire ring, and sawed down tree stumps that guests could use for seats. Id. 171:7–172:1.

Pastor Fuentes toured the property in 2006 along with several members of the church. Id.

55:10–14, 57:19–22. He found the spring water that ran through two irrigation ditches on the

property, as well as its greenery, very appealing. Id. 58:2–16; see also PX 532 (aerial photograph

of the property depicting the ditches). He anticipated that he could use the spring water to

perform baptisms. Tr. vol. 1, 58:11–16. He also was pleased that the property was surrounded by

a federal wildlife refuge. Id. 88:4–9. Because there would be no neighbors, camp visitors could

stay up late into the night to “do whatever they want to do,” work through “whatever problem

they want to lose,” and “get in touch with nature” away from city environments like Las Vegas.

Id. 88:9–19.

In November 2006 the Ministry purchased the property from Mr. Matheny for $500,000.

Joint Ex. (“JX”) 5. A member of the Fuentes’ Bible study group negotiated the price and donated

the funds for the purchase. Tr. vol. 1, 65:17–66:14, 127:19–23.

The Construction and Launch of the Church Camp

Between 2007 and 2008, the Ministry and its members transformed the northeastern part

of the property into a church camp. Tr. vol. 1, 68:1–6, 69:14–22. They cleaned the irrigation

ditches, removed six or seven semi-truck loads of trash, installed electricity in all of the

buildings, installed plumbing, painted, added insulation, converted the residential well into a

commercial well, and prepared all of the buildings on the property for health and fire inspections.

Id. 68:3–5, 69:3–5, 68:7–23. Much of the cleaning and refurbishing was done by members of the

church who donated their labor. Id. 69:5–9. In addition, the church hired professional contractors

for the more technical work, including the installation of the septic system and the grading of the

land, and the excavation of the pond. Id. 69:9–13; 211:7–11 (testimony of Ronnie Murphy,

general manager for Ron Murphy Construction). The church spent over $300,000 improving and

readying the property, excluding the market value of the volunteer labor of members of the

congregation. Id. 80:16–81:21; see PXs 46, 382–410, 415–21, 425–31 (checks, receipts, and

invoices for improvements).

By the time the camp was opened in 2008, JS no. 9, it included a chapel, a commercial-

grade kitchen, a dining hall, multiple bunkhouses, restrooms, a shower facility, and a snack bar,

PXs 531, 532 (aerial photographs); tr. vol. 1, 65:6–14, 196:7–11. The camp could accommodate

up to sixty-five guests at one time, tr. vol. 1, 83:24–84:1, and it regularly hosted groups from

other churches across the southwest region, id. 82:10–19. In addition, other events were held on

the property, including weddings, fundraisers, and retreats for the Ministry’s own membership.

Id. 82:20–24, 136:14–137:11. The Ministry requested a donation of $45 per person for use of the

camp to help pay the expenses of its operation. Id. 83:15–23.

The Location of the Property and Attendant Flood Risks

The Ministry’s land is located in the SW ¼ of the SW ¼ of Section 21 of Township 17

South, Range 50 East, MDB&M in Nye County, Nevada. JX 5. The property, as noted, lies

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entirely within the boundaries of the Refuge. JS no. 5; PX 451 (map of Ash Meadows National

Wildlife Refuge). As depicted in the surface drainage map below, which is Joint Exhibit 3, both

the Refuge (outlined in green in the lower left-hand corner of the image) and the Ministry’s

property (indicated by a red star) are located at the bottleneck of the historic floodplain of the

Carson Slough (outlined in dark blue). JS no. 4; tr. vol. 3, 600:12–15, 724:5–10, ECF No. 126. 3

The Carson Slough has a long history of flooding. Tr. vol. 3, 610:10–11, 640:3–9

(testimony of Kevin DesRoberts, the Project Leader of the Desert National Wildlife Refuge

Complex since July of 2009); tr. vol. 2, 285:12–16 (testimony of Richard Johnson, former Nye

3

The outer boundaries of the Slough are high points of the area (e.g., mountain ridges). Tr. vol.

3, 726:1–7. The lighter blue lines are “drainages,” which usually are dry, but when flooding

occurs, water feeds through them. Id. 727:16–20, 797:2–6.

5

County Floodplain Administrator), ECF No. 125. 4 When rain falls in the Slough, it travels

downward from northeast to southwest, “collecting and gaining water” along the way. Tr. vol. 3,

727:22–728:9 (testimony of Corey Lee, former Refuge manager). The floodwater ultimately

flows through the bottleneck of the Carson Slough that cuts through the upper third of the

Refuge, where the Patch of Heaven is located. Id. 696:12–16 (testimony of Robert Andress,

former Otis Bay project manager, stating that flood flow runoff in the watershed funnels into the

Carson Slough, that the Slough gets very narrow in the area of the Peterson Reservoir and the

Ministry’s property, and that all of the runoff must go through the narrow zone); see also id.

728:10–19 (Lee testimony, stating that flood flow runoff is funneled “into almost a pinch point”

in the upper third of the Refuge); tr. vol. 2, 447:23–25 (testimony of Dr. Blaine Reely, Plaintiff’s

expert hydrologist, stating that the majority of watershed is upstream of Plaintiff’s property).

A significant portion of Ash Meadows, and about two-thirds of the Ministry’s property

(including the camp location in the northeast corner), have been designated as flood zones by the

Federal Emergency Management Agency (“FEMA”). JX 24 (FEMA Flood Insurance Rate Map);

Defendant’s Ex. (“DX”) 47 (FWS document superimposing the boundaries of the Patch of

Heaven onto the FEMA-designated flood zone); tr. vol. 3, 803:5–10 (testimony of Dr. David

Thompson, government’s expert hydrologist); tr. vol. 1, 180:19–23 (Matheny testimony); tr. vol.

2, 272:6–9 (Johnson testimony); tr. vol. 2, 421:2–12 (Reely testimony).

At trial, Richard Johnson, a former Nye County Floodplain Administrator, testified that

he visited the church camp around late 2009 or early 2010. Tr. vol. 2, 268:24–269:9. During that

visit, he told Pastor and Mrs. Fuentes that the property was in a FEMA-designated AO2 flood

zone. Id. 269:8–21, 272:6–9. 5 An AO2 designation means that the property is in a “special flood

hazard area”—i.e., a high-risk area for flooding. Id. 283:4–6, 17–19. 6 Mr. Johnson told the

Fuenteses that the County’s floodplain ordinance required that buildings in an AO2 flood zone

be elevated by at least two feet or flood-proofed up to two feet and anchored. Id. 270:25–271:6.

The Ministry did not take any action to bring itself into compliance with this requirement

because, as Pastor Fuentes testified, he understood Mr. Johnson to have told him to hold off until

the restoration project was completed. Tr. vol. 1, 130:18–131:23; see also tr. vol. 2, 271:5–272:9

4

“A floodplain is an area around a river or a stream or a wash that is subjected to flow whenever

a flood passes through [a] particular breach of a spring.” Tr. vol. 3, 796:18–21. It is “generally a

relatively wide area,” and once “flow gets out of the channel itself,” it moves “in a similar

fashion to sheet flow.” Id. 796:21–24. Sheet flow is flooding over land that spreads out and

slows down as it moves downhill over a patch of land. Id. 729:16–730:7.

5

An AO2 designation means that during a “100-year flood” event, the property could be

inundated by up to two feet of water. Tr. vol. 2, 269:18–21, 271:14–18.

6

The former owner of the Ministry’s property, Ronald Matheny, was aware that the property

was located in a FEMA-designated flood zone when he sold it to the Ministry. Tr. vol. 1,

180:19–181:2. He testified that he did not disclose that information to the Ministry at the time of

sale because he believed (incorrectly) that he had “built the town where the flood zone area

isn’t.” Id. 181:3–9.

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(Johnson testimony, stating that, until FEMA did a base flood elevation study of Ash Meadows,

he could not tell the Fuenteses by how much the buildings on the property should be elevated).

The record contains a significant amount of historical evidence that reflects flooding on

the Ministry’s property. Satellite imagery of the property in 1948 shows spring flows to the east

of the property, and a flood channel travelling through the property from the northeast corner to

the southwest. DX 4; tr. vol. 3, 599:8–21, 601:10–602:4 (DesRoberts testimony). The same

natural flood channel running from the northeast corner of the property to the southwest is also

visible on satellite images from 1980, see JX 27; tr. vol. 3, 602:5–20, 603:3–10 (DesRoberts

testimony, describing Joint Exhibit 27), 1985, and 1989, see JX 14; tr. vol. 3, 604:18–605:5,

606:7–18 (DesRoberts testimony, describing Joint Exhibit 14); see also tr. vol. 3, 697:2–12

(Andress testimony, stating that elevation profiles, patterns of the landscape, and aerial

photographs provide evidence of substantial flooding events in the past and that “signs of flow

and scour east to west across that part of the upper Carson Slough” are “very visible on the

ground and in the imagery”).

Despite the foregoing, the previous owner, Mr. Matheny, testified at trial that, during his

period of ownership (from early 1997 to late 2006), the northeastern portion of the property had

never flooded. Tr. vol. 1, 173:5–174:4, 173:22–175:2. He acknowledged that during heavy

storms he had observed flooding on the Refuge outside of his property. Id. 174:5–24. Those

floods were “in the vicinity of the turnoff going into Peterson Reservoir,” approximately half a

mile from his property. Id. 174:5–15. 7 But when storm water came onto his property from the

northeast, Mr. Matheny testified, it either stayed in the irrigation ditches or else would discharge

to the west of the buildings out channels that had been formed naturally by erosion from

flooding. Id. 179:17–180:18; 182:1–11. 8

Mr. Matheny acknowledged that during periods of heavy rainfall, the water would

“puddle up” on his property and that the northeast field would become a “sloppy mess.” Id.

173:10–16. However, according to Mr. Matheny, the storm water that ran through the irrigation

ditches on the property never overtopped the edge of those ditches nor did it flood the structures

he built. Id. 173:17–174:4.

7

On one occasion, Mr. Matheny testified, the water in the flooded area of the Refuge was deep

enough to come up to the headlights of his “Chevrolet 1 ton” “[w]ork truck.” Tr. vol. 1, 174:16–

21.

8

The Court understands Mr. Matheny to be referring to a complex of flood channels that had

been naturally eroded out from repeated flooding (that is, the naturally-created discharge

channels west of the property). Tr. vol. 1, 182:7–16; tr. vol. 2, 440:1–11, 444:19–445:3 (Reely

testimony); tr. vol. 3, 829:20–830:2, 830:17–19 (Thompson testimony).

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The Fairbanks and Soda Springs Restoration Project

Background

The Ministry alleges in this case that the floods that occurred on its property starting in

December 2010 were caused by FWS’s implementation of its project to restore the outflows of

the Fairbanks and Soda Springs (“the restoration project” or “the project”). Those springs lie at

the north end of the Refuge and are the first springs to feed into the Carson Slough. JX 20

(Environmental Assessment for Fairbanks Spring and Soda Spring Restoration) at 5, 9; tr. vol. 3,

609:5–12 (DesRoberts testimony).

As noted briefly above, during the twentieth century, and before the Refuge was created,

the owners of what was then private property had drained the wetlands to facilitate farming and

peat mining. Tr. vol. 3, 609:12–15, 655:6–22. They removed native vegetation, leveled the land,

and put in infrastructure for irrigation by digging ditches into which natural spring water was

diverted. Id. 655:18–22; 628:18–629:1. One of these ditches, running from north to south and

into the Patch of Heaven, appeared sometime between 1985 and 1989. Tr. vol. 3, 605:16–23,

607:7–19, 631:15–632:5 (DesRoberts testimony, discussing Joint Exhibit 36 and observing that

spring flows from Fairbanks, Soda, Rogers, and Longstreet Springs were all diverted and

combined into a single ditch that headed to the west and then flowed down through the

Ministry’s property).

These actions, along with other human interventions, had caused “the entire wetland

ecosystem [to be] altered and . . . [to] become infested with noxious weeds and aquatic invasive

species,” which “decrease[d] the viability for endemic species recovery and provide[d] habitat

inconsistent with the needs of the species the Refuge was created to protect.” JX 20 at 5; see also

tr. vol. 3, 655:23–656:4 (DesRoberts testimony, stating that agricultural use had interfered with

the periodic flooding of the Slough and the benefits of such flooding to native fish species).

Irrigation ditches do not provide a good habitat for endemic and endangered species,

especially fish and other aquatic species. Tr. vol. 3, 594:20–22. FWS therefore planned to restore

the “[c]onnectivity of the springs’ outflows with the extensive wetland in the Carson Slough” by

rerouting spring flow out of the irrigation ditches, removing existing physical barriers, and

installing culverts that could be passed by native fish. JX 20 at 5.

Preparations for the Project

FWS publicized its intent to restore the Refuge’s springs to their historic paths as early as

1995 in one of the Refuge’s informational brochures. JX 45; tr. vol. 3, 590:24–591:14, 592:1–5.

The brochure stated that FWS was then working to restore the habitat of Ash Meadows and that

it expected it would continue its restoration efforts for many years. JX 45 at 2. It explained that

the long-term plan for the restoration process included returning “[s]tream channels diverted into

concrete irrigation ditches . . . to their natural courses” and removing “[n]onnative plants and

animals . . . to allow native plants and animals to thrive without competition.” Id.

8

In 2004, FWS retained environmental and ecological consulting firm Otis Bay Ecological

Consultants (“Otis Bay”), tr. vol. 3, 669:22–23, to conduct the Ash Meadows Geomorphic and

Biological Assessment, id. 671:7–13. Otis Bay reviewed the then-current status of the habitats

and species of the Refuge, evaluated “the restoration potential of the springs, spring channels,

and Carson Slough,” and “propose[d] restoration recommendations.” JX 4 (Ash Meadows

Geomorphic and Biological Assessment) at 7. It completed its assessment in 2006. Tr. vol. 3,

671:20–22, 672:8–673:7 (Andress testimony, discussing the objectives of the assessment

generally).

In August 2009, FWS issued a Final Comprehensive Conservation Plan (“the CCP” or

“the plan”) and Environmental Impact Statement for all of the refuges in the Desert National

Wildlife Refuge Complex, including Ash Meadows. JX 7 (FWS Final Comprehensive

Conservation Plan and Environmental Impact Statement); tr. vol. 3, 612:8–18 (DesRoberts

testimony). 9 A month later, in September 2009, FWS published its Environmental Assessment

(“the EA”) for the Fairbanks and Soda Springs restoration project for public comment. JX 20

(the EA). The EA, which was prepared by a private contractor, was posted on the Refuge

website, within the Refuge itself, and at public locations in the community. Tr. vol. 3, 617:17–

618:3 (DesRoberts testimony).

As described in the EA, the plan for restoring the Fairbanks and Soda Springs involved

excavating new stream channels in the vicinity of the historic channels and removing and filling

in obstructions to natural flow within those channels such as dams and old irrigation channels.

JX 20 at 5; see also tr. vol. 3, 675:9–18 (Andress testimony, stating that the purpose of the

project was “to take the[] outflow [of the Fairbanks and Soda Springs] out of [the] old irrigation

ditches and . . . fields and focus them into individual stream channels in a more naturalized

alignment and condition for the purpose of species recovery” and “ecosystem restoration”). The

EA contained a map depicting an overview of the restoration project. JX 20 at 9. It shows the

rerouting of the spring waters that then traversed the Ministry’s property through the irrigation

ditch so that they instead flowed through a new restoration channel to the east of the boundary of

the property. Id.; tr. vol. 3, 618:24–619:17, 620:12–15 (DesRoberts testimony).

FWS retained Otis Bay to design and build the restoration project. Tr. vol. 3, 670:17–

671:13, 706:21–707:12. Construction began in December 2009. JS no. 10. Otis Bay completed

the restoration project in two phases. During Phase I, which took place between December 2009

and April 2010, Otis Bay built the restoration channel north of the berm it later installed to divert

the spring water to the east and then south around the Ministry’s property. Tr. vol. 3, 646:21–25,

647:18–20. During Phase II, which began in July 2010 and ended January 2011, Otis Bay

installed the berm, which it constructed out of “dredged spoils.” Gourley Dep. 214:1–6, ECF No.

119-1; tr. vol. 3, 647:2–5, 647:21–23. 10

9

FWS was required by the Refuge Improvement Act of 1997 to create the CCP. JX 7 at 15; see

also tr. vol. 3, 612:8–11. Planning for it formally began in the fall of 2001. JX 9 at 2.

10

Throughout these proceedings the parties have engaged in a somewhat semantic debate about

whether to call this structure a “dam” as the Ministry would prefer, or a “berm” as the

government urges. While the structure may technically constitute a “dam” in that it does block

9

Otis Bay designed and constructed the restoration channel only to carry spring flow. Tr.

vol. 3, 713:19–22. Its dimensions were about two to three feet wide and two to three feet deep.

Id. 697:15–19. It was built to accommodate a flow of approximately 1,800 gallons per minute, or

two to three cubic feet per second (“cfs”). Id. 697:20–24. The restoration channel was not

designed or built to carry storm waters during flood events. Id. 713:23–714:7 (Andress

testimony); see also id. 654:10–12 (DesRoberts testimony). According to Robert Andress, the

Otis Bay project manager who worked on Phase I of the project, id. 676:11–13, 714:19–22, Otis

Bay designed the channel with the expectation that any flood flow would travel to the same

locations it always had traveled, and it was anticipated that the channel would be overwhelmed

in any case if there were floods, id. 714:1–7.

As noted, Phase I of the project involved the construction of partially new channels in the

upper section of the spring. Id. 706:21–24. As part of that work, Otis Bay excavated a stream

channel and added culverts and a fish barrier. Id. 706:25–707:3. Mr. Andress testified that during

the excavation process he used GPS to determine where to drive the stakes into the ground to cut

the channels. Id. 708:7–13. He explained, however, that he might adjust the locations of the

stakes by up to thirty feet if he concluded that it was necessary “to make it function better.” Id.

708:14–25.

Otis Bay did not use the services of a professional engineer in performing its work. Id.

707:16–19, 709:4–6. Nor did it use stamped design plans (meaning plans that had been reviewed

and approved by a licensed professional engineer) to complete the construction. Id. 707:16–22,

709:7–8, 866:16–19.

Otis Bay officially completed the project in January 2011. Id. 627:12–14.

The Floods

2007 Flood

In the deposition he gave on behalf of Ministerio Roca Solida pursuant to Rule 30(b)(6)

of the Rules of the Court of Federal Claims (“RCFC”), portions of which the Court admitted into

evidence, see tr. vol. 1, 10:8–12:6, Pastor Fuentes testified that “the first time the property

flooded” after the Ministry purchased it was in 2007. Ministerio Roca Solida Dep. (“Ministerio

Dep.”) 96:12–15, ECF No. 122-1. On that occasion it had rained north of the camp the day of the

flooding and the day before. Tr. vol. 1, 143:25–144:10. Pastor Fuentes, on behalf of the Ministry,

testified that, as rainfall flowed down the watershed, id. 144:11–13, muddy water slightly

overtopped the culvert and the banks of the irrigation ditches, id. 78:18–79:23, 99:11–17, 141:1–

5. Floodwater dumped mud and silt into a pond on the property that was fed by one of the

the flow of spring water to at least some degree, in the Court’s view it is more precise to call it a

berm, which Merriam Webster defines as including “a mound or wall of earth or sand.”

Merriam-Webster’s Collegiate Dictionary 115 (11th ed. 2020).

10

irrigation ditches. Id. 78:19–24. Pastor Fuentes had to close the pond because it had filled with

silt. Id. 78:24–79:2. He also had to hire a contractor to excavate the pond. Id. 78:5–21. 11

December 2010 Flood

In late December 2010, the Patch of Heaven suffered significant flood damage after there

had been multiple days of heavy rainfall in the upper watershed, with the heaviest rainfall

occurring on December 22. Tr. vol. 4, 942:12–20, 974:18–20 (testimony of Jay Rosenthal, the

government’s expert meteorologist, explaining that there had been heavy rainfall from December

17 through December 22), ECF No. 127. Pastor Fuentes testified that he arrived at the property

on December 23 after the peak of the flood flow had receded. Tr. vol. 1, 99:18–23, 147:6–8.

Upon arrival, he could not enter the property because the culvert that enabled the restoration

channel to pass under the access road to the Patch of Heaven had been blown out by flood water.

Id. 100:1–7; PX 481 (photographs of washed-out culvert). Pastor Fuentes was eventually able to

get onto the property with Mr. Matheny’s help. Tr. vol. 1, 100:7–9. Mr. Matheny laid boards

across the restoration channel so that both Pastor and Mrs. Fuentes could cross it and enter the

camp. Id. 100:7–9, 102:25–103:3 (Fuentes testimony); id. 187:25–188:7 (Matheny testimony);

PX 484 (photographs of boards laid across channel).

When they arrived on the property, Pastor Fuentes observed floodwater all around and

coming from the direction of the restoration channel. Tr. vol. 1, 102:8–12. It “was rushing down

the northeast field” to where the buildings were located, with “lots of water behind the lumber

house.” Id. The northeast field itself was inundated with water and the garden that once was there

was swept away. Id. 103:17–104:1; PX 486 (photograph of northeast field). Floodwater also

entered the barbecue area just outside of the snack bar and was several inches deep. Id. 147:9–

148:1; see also PXs 506, 508. Mr. Matheny testified that, when he owned the property, he had

never seen anything “even close” to the flooding he observed in December 2010. Tr. vol. 1,

189:21–190:4.

Ronnie Murphy, the general manager of Ron Murphy Construction, also provided

testimony about the damage caused by the 2010 flood. Id. 207:5–9. He flew over the property in

an airplane. Id. 220:23–221:2; see also PX 151 (aerial photograph). He testified that “when the

rain came and it was really heavy and the water started flooding the whole property, we knew

that something catastrophic happened upstream for that amount of water to be on the property.”

Tr. vol. 1, 221:3–15. Mr. Murphy was of the opinion that the flooding was caused when a “dam”

located to the north of the Ministry’s property “broke,” id. 221:21, and that once it did “water

11

Pastor Fuentes testified that he believed that the flooding that resulted in the damage to his

pond was caused by work that FWS was performing upstream, which he believed had caused

“something” to “break loose from the top” and “rush the water down to the property.” Tr. vol. 1,

144:11–19; 145:3–146:2. Mr. DesRoberts testified, however, that there was no work being done

by FWS at the time that the flood occurred in 2007. Tr. vol. 3, 639:18–640:2. The Court credits

Mr. DesRoberts’ testimony and finds that the flooding that occurred in 2007 was not the result of

actions taken by FWS.

11

went everywhere” and it “sheeted across pretty much the whole property, particularly in the area

where their bunkhouses and stuff were,” id. 222:4–12. 12

October 2015 Flood

The property flooded again on October 18, 2015, after a series of heavy thunderstorms

moved through the area, tr. vol. 1, 105:23–106:4, which on October 18 dumped “tremendous

amounts of rain” “throughout the heart of the watershed” in a one-hour period, tr. vol. 4, 959:20–

960:12, 963:9–13, 964:7–17 (Rosenthal testimony). Pastor Fuentes again arrived at the property

after the peak flooding had passed. Tr. vol. 1, 106:5–10, 152:19–21. He testified that the damage

looked “a lot like the 2010 flood.” Id. 106:11–14. He explained that, as with the 2010 event, he

again observed flood water entering the property from the direction of the restoration channel. Id.

106:13, 106:22–107:1. This time, however, water also came down from the north and flooded the

property northwest of the bunkhouses. Id. 106:14–21, 110:6–111:1. A natural erosion channel

that runs to the middle and then off to the west of Plaintiff’s property also was filled with flood

water during this event. Id. 153:18–154:4.

Flood water did not enter any of the buildings in 2015. Id. 154:9–11. Other than some

standing water behind the snack bar, most of the water receded off the property within two days

of the flood event. Id. 154:9–18, 157:16–23.

2016 Floods

Pastor Fuentes testified regarding two flood events in 2016. Tr. vol. 1, 112:3–4. One

occurred in January, when water entered the northeast hill and ran down through the former

irrigation ditch and into his front field. Id. 112:5–22. He stated that the flooding “wasn’t that

bad” on this occasion. Id. 159:18–24. Water did not enter any buildings. Id. 160:6–8.

There was another instance of flooding on July 3, 2016, which Pastor Fuentes stated was

“a little bigger” than the January flood. Id. 113:3–5. In the three preceding days, very strong

thunderstorms had struck the area. Tr. vol. 4, 970:2–5 (Rosenthal testimony). On this occasion,

water overtopped the culvert of the former irrigation ditch and ran through the front of the snack

bar area. Tr. vol. 1, 113:2–15 (Fuentes testimony); PXs 298, 300, 301. Again, no water entered

the buildings. Tr. vol. 1, 160:22–24.

March 2019 Flood

Pastor Fuentes testified that another flooding event occurred on March 9, 2019, a day that

he was present on the property. Tr. vol. 1, 114:21–24; Ministerio Dep. 25:2–7. Pastor Fuentes

stated that floodwater came from the northeast and flooded the northeast hill of the property. Tr.

vol. 1, 115:2–4; Ministerio Dep. 25:8–13, 72:7–10. The flooding was limited to the four or five

acres that comprise the northeast fields. Ministerio Dep. 28:4–14. Pastor Fuentes could not

estimate the depth of the water on this occasion; he stated only that it was spread widely over the

12

There is no evidence in the record to show that a dam located north of the property broke or

that the flooding that occurred was caused by such a break.

12

fields, id. 29:24–30:8, and that it then came down to the natural flood channel and flowed out in

a southwesterly direction, id. 30:9–12. The water did not damage or enter any of the camp

buildings. Id. 27:3–12. No work or repairs were required. Id. 27:13–18.

Mr. Corey Lee, the Ash Meadows Refuge Manager from January 2017 through

November 2020, tr. vol. 3, 717:1–13, also offered testimony about the March 2019 flooding

event. He observed that the night before the flooding occurred, it had started to rain and it was

still raining when he arrived at the Refuge the next morning on March 6. Id. 736:5–18. He

estimated that the Refuge received a half an inch of rain in twelve hours, which he characterized

as “not a lot of rain” but enough to cause a lot of surface flooding. Id. 736:10–13. Mr. Lee

testified that on that day he saw the flooding on Plaintiff’s northeast field and determined it was

approximately a half to a full inch in most places and moving southwest. Id. 757:4–14.

Mr. Lee visited different points along the Refuge and took photographs of his

observations on March 6 and 7, 2019. DXs 193, 197, 198. From an area south of the Patch of

Heaven, he observed that floodwaters generally moved in a southwesterly direction. Tr. vol. 3,

739:3–740:4. He observed the same trajectory of floodwater movement while standing north of

the Patch of Heaven, in an area between the Fairbanks and Roger Springs. Id. 747:22–748:5,

748:16–19; see also DX 199 (video of floodwaters); DX 209 (photograph from area between the

Fairbanks and Roger Springs); PX 451 (map of Refuge).

Mr. Lee also visited the restoration channel itself, at a location about half a mile to the

north of Plaintiff’s property. Tr. vol. 3, 749:25–750:11; DX 202 (photograph taken from

restoration channel facing north); DX 200 (photograph of restoration channel). He testified that

here, again, the water flowed from the northeast towards the southwest. Tr. vol. 3, 751:11–13. He

stated that he observed that water coming from northeast of the restoration channel would flow

into the restoration channel and then flow across the restoration channel and out the west bank.

Id. 752:4–9.

April 2020 Flood

Pastor Fuentes testified that additional flooding occurred on April 9, 2020. Tr. vol. 1,

116:1–12; Ministerio Dep. 72:16–19. On that day, he witnessed floodwater on the northeast field

similar to what he observed in March 2019. Tr. vol. 1, 116:15–18; PXs 703, 705. 13 On this

occasion again, there was no damage to the buildings. Ministerio Dep. 79:14–22.

Cumulative Impact of Floods

The 2010 and 2015 floods were the most severe of those about which the Ministry

complains. The 2010 flood damaged the church camp buildings, causing the walls and ceiling to

crack in both bunkhouses. Tr. vol. 1, 150:12–14, 150:25–151:8; PX 529 (photograph of water

13

Pastor Fuentes testified that from his perspective, for each event, he could see that the flood

water came at the property from the direction of the restoration channel to the northeast. Tr. vol.

1, 100:11–15 (December 2010 flood); id. 106:22–107:1 (October 2015 flood); id. 112:20–24

(January 2016 flood); id. 113:12–15 (July 2016 flood); id. 116:19–22 (April 2020 flood).

13

near buildings); PXs 547, 548, 550, 551, 554 (photographs of cracked bunkhouse walls). In

addition, those floods (in combination with the subsequent milder ones in 2016, 2019, and 2020)

caused significant damage to the landscape. The 2010 flood “washed away” the “vegetation” on

the property, and it has not grown back. Tr. vol. 1, 104:4–9. Pastor Fuentes further testified that

almost all of the floods left white silt in their wake that lingered on the property long after the

floodwaters had receded. Id. 104:4–17 (stating that, after the December 2010 flood, “all the

vegetation there died,” and the area “was cover[ed] with the silt”); id. 224:15–18 (Murphy

testimony, noting that the Ministry’s “[p]roperty was completely covered in silt” after the

December 2010 flood); id. 109:9–13 (Fuentes testimony, stating that the October 2015 flood left

“white silt all over the field”); id. 117:4–11 (explaining that Plaintiff’s Exhibit 703 showed “all

the white silt due to the flood” after the April 2020 event); PX 596 (photograph of silt following

March 2019 flood); tr. vol. 2, 349:4–20 (Reely testimony, describing white silt following flood

events generally).

The estimated cost of repairing the buildings and restoring the landscape after the 2010

flood was $86,639. Tr. vol. 1, 227:16–18, 223:14–19 (Murphy testimony); PX 242 (2010 repair

estimate from Ron Murphy Construction). The estimate included removing the white silt,

bringing in rock to replace the eroded soil, repairing and replacing the irrigation system, and

jacking up and releveling the two damaged bunkhouses. Tr. vol. 1, 224:8–18, 225:11–18,

226:19–227:1, 227:16–18 (Murphy testimony).

After the 2015 flood, Ron Murphy Construction estimated that it would cost $222,355 to

repair the damage from both floods. Tr. vol. 1, 234:18–21. That estimate included additional

costs for regrading and cleaning out the eroded channels, removing additional silt, replacing

topsoil, reseeding grass, and regrading and filling erosion near the buildings. Id. 230:17–234:21;

PXs 165–67, 592–95 (2015 repair estimates from Ron Murphy Construction).

Pastor Fuentes explained that the church did not have the resources to make these repairs

and, even if it did, it would hesitate to invest any money because of the risk of continued

flooding. Tr. vol. 1, 123:9–23. To date, the Ministry has only made minimal repairs to the church

camp property. Id. 119:22–120:18.

Pastor Fuentes testified that the flood damage and the risk of future floods has hampered

the Ministry’s ability to fully use the land and operate it as a church camp. See id. 118:6–15. Use

of the camp has declined, id. 119:10–20, although some groups continue to use it and pay to do

so, Ministerio Dep. 33:24–35:10. One pastor testified at trial that his congregation stopped using

the camp for its retreats in 2016 because the land that was once green and lush became like any

other desert environment, and also because the water no longer ran through the property. Tr. vol.

1, 201:5–202:10. Pastor Fuentes also testified that he believed potential visitors are afraid to visit

the camp because of the risk of flooding. Id. 118:10–11. He stated that during the flood of 2015,

he had to help a pastor and his congregants safely exit the flooded property. Id. 118:12–17. After

the more significant floods of 2010 and 2015, Pastor Fuentes testified he was not able to use the

property at all for three or four weeks after each flood event. Id. 118:19–119:6.

14

Testimony of Plaintiff’s Expert Hydrologist

Qualifications

Plaintiff’s expert in this case was Dr. Blaine T. Reely. Dr. Reely is a civil engineer and

hydrologist who has practiced in those fields for nearly forty years. Tr. vol. 2, 295:18–21,

298:13–16. He holds a Ph.D. in civil engineering, with an emphasis in hydrology. Id. 297:2–8.

He is a registered professional engineer in a number of states. Id. 300:14–25.

Since 2002, Dr. Reely has owned Monsoon Consultants, where he serves as its principal

engineer. Id. 298:17–20, 299:10–12, 299:19–20. The company performs engineering, hydraulic,

and hydrologic analyses (including hydraulic modeling) in connection with public and private

land-development and water-management projects, such as the construction of dams and

flood-control projects. Id. 298:20–299:9 (explaining that Monsoon Consultants’ civil engineers

and hydrologists work for public and private clients); id. 296:11–16, 301:16–302:11, 305:10–

306:5, 306:22–308:24 (describing experience in water resources analysis and engineering, flood

control project engineering, hydrologic and hydraulic analysis of dams). Dr. Reely has testified

as an expert numerous times. Id. 313:25–314:6. The Court qualified him as an expert in the fields

of hydrology and civil engineering. Id. 324:3–4.

Dr. Reely’s Opinion

At trial, Dr. Reely explained that the Ministry hired him to evaluate the conditions in the

Carson Slough near the church camp property as well as upstream and downstream to get an

understanding of the hydrology and hydraulics of the surface water system. Tr. vol. 2, 309:3–9.

In addition, he was asked to evaluate the effect of the restoration project and the statistical

relevance of rainfall events beginning with the 2010 flood. Id. 309:9–15. And ultimately, he

testified, his charge was to “develop an opinion as to what . . . is happening and what might be

causing some of that flooding—contributing to that flooding.” Id. 309:18–21. He was also asked

to review and comment on the report of the government’s expert hydrologist, Dr. Thompson. Id.

309:22–310:3.

Dr. Reely formed his opinions primarily on the basis of his physical observations of the

property and the surrounding areas, including the berm and the restoration channel. Id. 310:6–21.

He visited/viewed the property three times: (1) in October 2013, id. 334:23–24, 443:9–11; (2) in

January 2014 (via airplane), id. 336:21–337:7, 443:12–13; and (3) on October 30, 2015, id.

337:19–22. He also reviewed historic aerial photographs and flood data for the area, as well as

topographic maps, and FEMA Flood Insurance Rate Maps. Id. 310:21–311:13.

1. Dr. Reely’s Opinion as to Causation

Based on his observations, as well as the photographs and maps he reviewed, Dr. Reely

concluded that the “predominant” cause of the flooding of the Patch of Heaven was “the

construction of the diversion dam and the obstruction of a natural course of Carson Slough.” Tr.

vol. 2, 427:17–23. According to Dr. Reely, before FWS installed the berm and restoration

channel, when floodwaters came down from the upper watershed and the western side of the

15

Carson Slough, they flowed down the “natural trace” of the Carson Slough—a channel that runs

along the very western edge of the Slough north of Plaintiff’s property. Id. 340:4–10. 14 Dr. Reely

testified that “under natural conditions, big parts of that flow” would discharge out of the Carson

Slough through a series of “off-ramps” on its western bank, thereby avoiding entirely the

developed portion of the Ministry’s property where the buildings and church camp are located.

Id. 340:11–341:7, 342:18–21, 367:8–18, 344:4–14, 355:10–24.

Dr. Reely testified that when FWS placed the diversion berm in the path of the natural

trace, it disturbed this historical regime. Id. 341:2–7. Doing so, according to Dr. Reely, not only

prevented spring water from flowing through the trace, but it also blocked the path of flood

water. Id. 344:17–18, 370:6–8. According to Dr. Reely, the berm kicked flood flow out to the

southeast, where the flood waters would “tr[y] to follow the trace of the restoration channel.” Id.

344:18–19, 370:8–17. The capacity of the restoration channel, however, was insufficient to

contain the volume of floodwater passing through that point of the Carson Slough. Id. 340:19–

22. As a result, Dr. Reely opined, the water would “break[] out” of the western bank of the

restoration channel “at a number of locations.” Id. 344:20–23. After escaping the restoration

channel, according to Dr. Reely, the water would enter an intervening and pre-existing system of

braided channels (“the braided channels” or the “braided channel network”) that drain west and

southwest down an elevation of approximately “six to ten feet.” Id. 344:24–345:11, 351:8–17. 15

The braided channels, which Dr. Reely physically observed, id. 356:1–3, orient generally

to the south-southwest, id. 356:4–7. Some track directly towards the Patch of Heaven, while

others track to the north side of the property and would exit into the natural drainage system to

the west of the property. Id. 356:4–14. The network of braided channels predates the

construction of the restoration channel. Id. 356:15–23. As more flooding has occurred, Dr. Reely

opined, the channels are getting deeper and wider and the network itself is becoming more

defined. Id. 357:2–5. This change in the hydraulic flow regime, testified Dr. Reely, will increase

the amount of floodwater that exits the restoration channel and enters the Patch of Heaven via the

braided channels. Id. 357:6–15.

14

Plaintiff’s Exhibit 77 is an aerial photograph that depicts the “natural trace.” See PX 77. The

right side of the photograph is north. The dark colored north-south channel that runs parallel and

to the west of the straight manmade channel (irrigation ditch) is the natural trace, which is

usually dry but carries floodwater during flood events. Tr. vol. 2, 340:4–8. This channel is at the

very edge of the Carson Slough. Various “off-ramp” channels flow out of the natural trace to the

west (“off-ramp channels”). Id. 340:11–12, 342:18–20. The off-ramp channels are heavily

vegetated, and the vegetation that surrounds the channels is visible in the photograph. See PX 77;

tr. vol. 2, 342:9, 353:12–16, 354:2–5.

15

The braided channels are also visible in Plaintiff’s Exhibit 77. They are in the bottom left

quadrant of the image and are located directly to the southwest of the restoration channel. See

PX 77.

16

2. Supporting Data

According to Dr. Reely, his expert opinion is supported by evidence he observed during

his site visits and his analysis of aerial photographs. See tr. vol. 2, 310:6–311:13.

First, Dr. Reely testified, his opinion is supported by aerial photographs. Id. 310:21–24.

Specifically, he cited Plaintiff’s Exhibits 150 and 151, which depict conditions after the peak

flow passed through during the flood of 2015. See PXs 150, 151; tr. vol. 2, 380:21–381:4

(describing Plaintiff’s Exhibit 150); tr. vol. 2, 368:21–369:1 (describing Plaintiff’s Exhibit 151).

Those photographs show milky brown flood water in the restoration channel, but no water at all

in the natural trace or the off-ramp channels. Tr. vol. 2, 380:20–382:2 (describing Plaintiff’s

Exhibit 150); id. 373:23–374:12, 374:23–375:11 (describing Plaintiff’s Exhibit 151). Dr. Reely

testified that the photographs indicated that floodwater did not overtop the diversion berm and

never entered the natural course of the Carson Slough but was instead entirely diverted by the

berm as he had opined. Id. 381:15–20.

Second, Dr. Reely testified that he observed silt with “alligator cracking” on Plaintiff’s

property and in the channels of the braided network. Id. 350:18–25. This cracking, Dr. Reely

explained, shows that the restoration channel was carrying floodwater diverted by the berm and

that this water entered into the braided channels. Id. 347:20–348:8. As Dr. Reely explained it,

floodwaters pick up silt, including fine grain material and clay. Id. 348:2–4. When floodwater

leaves the restoration channel and enters the braided channels, the rate of flow gradually declines

allowing the silt to drop out of the water. Id. 348:9–19. As a result, a thin layer of “whitish” silt

settles on surfaces traveled by the floodwater. Id. 348:19–23. The clay component shrinks as it

dries out causing a distinct pattern of cracks called “alligator cracking.” Id. 349:12–15. In a dry

environment, the alligator cracking pattern can remain for several years following flood events

before it starts to break down and be reincorporated into the soil profile. Id. 349:21–350:17.

Third, Dr. Reely testified that he observed features of the natural western discharge

channels which indicated that floodwater entered those channels from the side (that is, from the

restoration channel) rather than from the north (through the natural trace). Id. 378:9–17. He

explained that the western discharge channels are generally oriented north-south. Id. 378:14–15.

In his opinion, it was clear that water had cascaded into those channels from the sides because

sideways moving water, which has a lot of energy, erodes the stream bank and creates a

“headcut.” Id. 378:15–25. 16 Had the water flowed from the north from the natural trace,

explained Dr. Reely, the vegetation in that area would have caused the water to slow down and

have less velocity than water “dumping” into the western discharge channel from the side. Id.

379:5–16. If repeated flooding occurs, Dr. Reely concluded, the energy of the sideways moving

water will continue eroding the bank until a new drainage system becomes stable. Id. 379:19–

380:3.

16

A headcut is an erosional feature of some streams with an abrupt vertical drop. Regional

Stream Stewardship and Recovery Handbook, Commonly Used Terms,

https://streamhandbook.org/commonly-used-terms (last visited September 8, 2021).

17

3. Dr. Reely’s Opinion Regarding Rainfall

Dr. Reely, as noted, was also asked to analyze the statistical relevance of the rainfall

events that preceded the four flood events cited in the Ministry’s complaint. To that end, he

gathered twenty-four-hour rain gauge data for: December 22, 2010; December 23, 2010; October

18, 2015; January 8, 2016; and July 3, 2016, using the three rain gauges closest to the Patch of

Heaven. 17 He compared rain-gauge data collected for twenty-four-hour rainfall events that

preceded the flooding to data published in the National Oceanographic and Atmospheric

Administration’s (“NOAA”) precipitation frequency database. Tr. vol. 2, 393:17–22. Based on

his comparison, he concluded that the rain events “that led to specifically the peak discharge

associated with each of the floods” which he reviewed were not “statistically excessive.” Id.

392:14–18.

Specifically, he concluded that the rainfall captured by the Amargosa Farms rain gauge

over one twenty-four-hour period equated to a one-year event for December 23, 2010, and fell

between a one- and two-year event for December 22. Id. 412:10–25. The Desert Wildlife Refuge

gauge for December 23, 2010, showed precipitation frequency approaching a ten-year event. Id.

414:5–9. Last, the Desert Rock Airport gauge for December 23, 2010, showed precipitation

frequency between a five- and ten-year event. Id. 415:9–12.

Similarly, rainfall on October 18, 2015, for the Desert Rock Airport rain gauge correlated

to something less than a one-year event. Id. 415:21–416:16. Finally, he testified, the NOAA

tables revealed that the rainfall on January 8, 2016, for the same gauge was approximately a one-

year rainfall event and rainfall on July 3, 2016, was less than a one-year event. Id. 416:24–

417:20.

Testimony of the Government’s Expert Hydrologist

Qualifications

The government’s expert, Dr. David Thompson, is a self-employed civil engineer and

hydrologist. Tr. vol. 3, 786:23–787:1. Dr. Thompson holds a Ph.D. in civil engineering with an

emphasis on hydraulics and hydrology. Id. 787:5–7. He maintains a license in professional

engineering in three states and has a certification in hydrology issued by the American Institute

of Hydrology. Id. 787:21–788:1. In the past, he has worked for private consulting firms, the

United States Geological Survey (“USGS”), and Texas Tech University, where he taught

graduate and undergraduate course in hydrology, hydraulics, and numerical methods for fourteen

years and directed several sponsored research studies. Id. 789:24–790:6, 788:5–18. Dr.

Thompson has participated in more than thirty research studies, published approximately fifty

conference proceedings, and written thirty referee papers. Id. 788:22–789:4, 792:7–8.

17

The three gauges were: (1) Desert Rock Airport rain gauge located in the upper northeastern

quadrant of the watershed, tr. vol. 2, 396:5–17; (2) the Desert Wildlife Refuge rain gauge located

just south of Plaintiff’s property in the watershed, id. 396:19–397:4; and (3) the Amargosa Farms

rain gauge located northwest of Plaintiff’s property just beyond the western boundary of the

watershed, id. 397:6–12.

18

Dr. Thompson began doing private consulting work in the mid-1970s, id. 789:7–10, and,

other than a stint with the USGS, id. 789:24–790:1, he has since continued to consult on a variety

of projects requiring his expertise in hydrology and hydraulics, id. 790:12–25. Dr. Thompson has

consulted on over fifty projects during his career as a hydrologist. Id. 792:3–7.

The Court qualified Dr. Thompson as an expert in the fields of hydrology and hydraulics.

Id. 805:10–11.

Dr. Thompson’s Opinion

Dr. Thompson testified that his assignment was to determine the cause of flooding for the

flood events cited in the Ministry’s complaint, which occurred in December 2010, October 2015,

January 2016, and July 2016. Tr. vol. 3, 794:10–15. To that end, he made three field visits to the

Carson Slough and the Patch of Heaven in January 2014 and in August and December of 2017.

Id. 799:17–800:2, 807:4–6. He also reviewed topographic data and aerial photographs. Id.

797:13–17. In addition, he prepared hydraulic and hydrologic models. Id. 795:7–16.

Based on the information drawn from these sources, Dr. Thompson concluded that the

capacity of the restoration channel was too small to have caused the flooding that occurred at the

Patch of Heaven during each of the four events of 2010, 2015, and 2016. Id. 813:2–15. Instead,

he opined, the floodwater that invaded the Patch of Heaven in 2010 and 2015, as well as that

which saturated the northeast field in 2016, had flowed from the western to the eastern side of

the Carson Slough floodplain north of the berm. Id. 820:1–6. It then flowed down through

existing flood channels and over the restoration channel entering the existing braided channel

network, which routed it directly onto the Ministry’s property. Id. 837:18–23.

Dr. Thompson used two types of modeling software to analyze the causes of the flooding

during the four events at issue: the Hydrology Engineering Center’s Hydrologic Modeling

System (“HEC-HMS”), id., 795:7–8, and the one-dimensional (“1D”) version of the Hydrology

Engineering Center’s River Analysis System (“HEC-RAS”), id. 795:10–11, 795:24, 868:15–18.

Both types of software were created by the Army Corps of Engineers and are used by

hydrologists worldwide. Id. 795:7–11.

A HEC-HMS (hydrologic) model is “a rainfall runoff model or a watershed model” that

hydrologists use to analyze how a watershed “transform[s]” rain “into a flow rate that exits the

watershed at the outlet.” Id. 795:7–8, 795:19–23. In other words, it calculates the peak discharge

for the rain event being examined.

Creating the HEC-HMS model requires the hydrologist to input certain relevant data.

Here, Dr. Thompson input topographic data into the model to delineate the watershed. Id.

797:23–24, 798:13–14, 800:3–20. He also input data about the composition of the soils. Id.

798:22–799:3, 800:23–801:18. This data enables the model to estimate “how much rain enters

the soil and is lost and how much is left over to produce runoff that then moves across the

watershed to the outlet from the watershed.” Id. 801:14–18.

19

After he built the model, Dr. Thompson input rain gauge data “to produce estimates of

discharge for the events in question from the Carson Slough watershed at a location near

plaintiff’s property.” Id. 807:15–21. He chose a rain gauge that was within the watershed

boundary and that measured rainfall in intervals of less than twenty-four hours. Id. 807:15–17,

826:2–25. Dr. Thompson also performed indirect measurements during his field visits to provide

an “independent means of . . . examining the discharge from [the] Carson Slough.” Id. 807:23–

808:3.

In addition to the HEC-HMS (hydrologic) model, Dr. Thompson created a one-

dimensional HEC-RAS (hydraulic) model “to examine how flow moves through the Carson

Slough floodplain,” which he constructed “with input from HEC-HMS” as well as “whatever

supporting calculations were required.” Id. 795:10–14, 795:24–796:2. He input topographic data

that defined the watershed. Id. 798:14–17, 800:3–5. He also input soils data so the model could

take into consideration their ability to shed or absorb water, id. 798:22–799:3, and a “parameter”

to estimate the floodplain’s “roughness,” which is a measure of the friction (usually the amount

of vegetation) that water encounters that causes it to lose energy when it passes over land, id.

832:22–833:13. Finally, Dr. Thompson input into the HEC-RAS model the volume of flood flow

his HEC-HMS model had calculated that the rainfall generated during the four flood events. Id.

795:24–796:1.

Based on his modeling and physical observations, Dr. Thompson came to three primary

conclusions. First, based on the HEC-HMS model, he found that the restoration channel could

not have had any meaningful impact on flood flows entering the Patch of Heaven during the

events at issue. Specifically, that model revealed that: (1) the peak discharge in the Carson

Slough was approximately 3,200 cfs during the December 2010 flood event, 1,570 cfs during the

October 2015 event, 1,720 cfs during the January 2016 event, and 1,620 cfs during the July 2016

event, id. 814:19–815:6; 18 and (2) that the restoration channel’s maximum flow capacity at the

upper end of the channel was approximately 75 cfs when Dr. Thompson first visited the site in

2014 and 35 cfs when he returned in 2017, id. 809:19–25, 810:5–6. 19 When he looked at the

18

Dr. Thompson testified that because the HEC-HMS model provides only estimates of flood

flow, he checked those estimates by taking “indirect measurements.” Tr. vol. 3, 807:23–808:3.

Specifically, he examined high-water marks observed in an area upstream of Plaintiff’s property

and used them along with the geometry of the channel to “make an estimate of flow rate.” Id.

799:4–11, 815:15–20. The high-water marks allowed Dr. Thompson to measure the width and

depth of flow at that location. Id. 815:25–816:6. Then, using “computations based on open

channel hydraulics,” he estimated the flow that had caused the high-water mark. Id. 816:6–9. Dr.

Thompson’s indirect measurements led him to conclude that the upper and lower bounds of the

peak discharge in recent flood events were 4,500 cfs and 1,400 cfs, respectively. Id. 815:25–

816:9, 816:17–20. These estimates gave Dr. Thompson confidence that the outputs of the HEC-

HMS model were “reasonable.” Id. 816:23–817:6; see also id. 833:18–835:25 (testifying as to

how high-water marks are determined and used to estimate depth and area of flow).

19

The restoration channel’s capacity decreased, he explained, because the amount of vegetation

in and along the restoration channel increased in the ensuing years, which decreased the capacity

of the channel. Tr. vol. 3, 810:1–7.

20

HEC-RAS model he constructed of the restoration channel itself, it showed that if as little as 150

to 200 cfs entered the channel, it would “readily spill[] out,” leaving only 35 cfs remaining. Id.

812:15–25. Dr. Thompson therefore concluded that the capacity of the restoration channel

(whether 35 or 75 cfs) was far too limited to carry the thousands of cfs of flood flow that came

down the watershed for any of the four events. Id. 813:2–813:15 (opining that “[t]here’s just no

capacity [for the restoration channel] to carry significant amounts of flow”).

Second, in an effort to determine what had caused the flooding on the Patch of Heaven,

Dr. Thompson built a HEC-RAS model of the Carson Slough floodplain and the Patch of Heaven

that did not include the berm and restoration channel. Id. 817:14–16. Dr. Thompson concluded

that the Patch of Heaven would have flooded during each of the four events of 2010, 2015, and

2016 even if the restoration channel had never been built. Id. 817:17–818:1, 818:7–17, 870:5–22.

Dr. Thompson ran the 1D HEC-RAS model twice using two volumes of peak flood flow:

one based on the HEC-HMS model’s estimated discharge of 3,200 cfs to show the approximate

depth of flow during the December 2010 flood event; id. 846:21–847:2; and another based on the

HEC-HMS model’s estimated discharge of 1,600 cfs to approximate the floods of October 2015,

January 2016, and July 2016; id. 849:24–850:6. 20 The models showed that the Patch of Heaven

would flood anytime peak discharge in the Carson Slough reached a volume of 1,600 cfs or

more. Id. 817:9–13.

Finally, Dr. Thompson concluded based on physical observations and topographic data

that the flooding at the Patch of Heaven was the result of “rainfall-derived flood runoff” that

migrated from the western to the eastern side of the Carson Slough floodplain. Id. 814:10–13,

818:7–17, 820:1–6. He explained that there was a “relative . . . topographic high” upstream of

the berm, id. 846:3, where, he stated, flood flow would readily cross over from the west to the

east side of the Carson Slough and tend to stay on the east side as it coursed down the floodplain,

id. 819:6–12.

Dr. Thompson testified that his HEC-RAS model of the Carson Slough validated his

conclusions based on his field observations and review of topographic data. It showed that for

flood flows of 1,600 cfs or more, floodwaters on the western side of the model would cross over

to the eastern side, id. 843:7–11, because the “depth [of the flood flow] is greater than the

intervening [topographic] high between the western and the eastern [sides of the] floodplain,” id.

847:12–18. 21

20

Dr. Thompson’s 1D HEC-RAS model combined four different 1D HEC-RAS models into one.

Tr. vol. 3, 843:24–844:1. Two of the models, Dr. Thompson explained—specifically his models

of the east and west sides of the Carson Slough floodplain—were particularly important and

allowed him to determine approximately how much flow would be on the east side of the

floodplain. Id. 844:1–7. The other two models, which focused on areas on or near Plaintiff’s

property, allowed him to estimate the depth of flow on Plaintiff’s property and the discharge

passing through the western discharge channels. Id. 844:7–11.

21

As a 1D HEC-RAS model is limited in its ability to show lateral movement of water, tr. vol. 3,

869:17–19, Dr. Thompson inserted a “lateral weir” in the model at the topographic high between

21

Once the water was on the eastern side of the floodplain, Dr. Thompson opined, it would

“readily bypass the restoration channel and proceed on in a natural direction towards [the]

plaintiff’s property.” Id. 818:7–17. Dr. Thompson’s thesis is consistent with two aerial

photographs, Plaintiff’s Exhibits 108 and 151, which show floodwater to the northeast of the

restoration channel crossing over it. Id. 854:18–855:5 (describing Plaintiff’s Exhibit 108); id.

810:25–811:2, 814:2–7 (describing Plaintiff’s Exhibit 151). According to Dr. Thompson, once

floodwater passed over the restoration channel it would enter the braided channel network to the

southwest. Id. 836:22–837:4, 837:20–23; see also id. 854:18–855:2 (testifying that the aerial

photograph comprising Plaintiff’s Exhibit 108 showed water crossing the restoration channel and

entering the braided channel network). From there, he testified, floodwater would be conveyed

directly to the northeast corner of the Patch of Heaven, where the buildings are located. Id.

837:20–23, 838:11–17. Some of that water would break off into the western discharge channels,

but the remainder would run across the church camp, most likely as sheet flow. Id. 843:16–21.

Dr. Thompson’s HEC-RAS model showed that flow remaining on the western side of the

floodplain (the flow that did not overtop the topographic high between the east and west sides of

the floodplain), would still exit through the off-ramp channels along the natural trace. Id.

847:18–20. Dr. Thompson stated that he visited the site of one of the off-ramps and “confirm[ed]

that it is actively discharging water whenever there’s significant flows within the Carson Slough

floodplain.” Id. 839:15–23. Dr. Thompson opined therefore that neither the restoration channel

nor the berm has a significant impact on whether flow on the western side of the floodplain will

be able to enter the natural trace and leave through the off-ramp channels on its western bank. Id.

842:2–17.

Testimony of the Government’s Expert Meteorologist, Jay Rosenthal

At trial, the government presented the testimony of Jay Rosenthal, a meteorologist. Mr.

Rosenthal has been working as a professional meteorologist since 1963. Tr. vol. 4, 929:19–21.

He has a bachelor’s degree in meteorology from New York University and master’s degree in

meteorology from the University of California, Los Angeles. Id. 929:22–930:1. He spent over

thirty-eight years as a civilian meteorologist for the United States Navy until he retired in 2001.

Id. 930:19–22. He has also served as a consultant and worked part time as a research leader for

Battelle, working on weather issues related to homeland security. Id. 932:15–23. The Court

qualified Mr. Rosenthal as an expert in meteorology. Id. 933:7–8.

Mr. Rosenthal was asked to evaluate the flooding events described in the complaint from

a meteorological standpoint to determine whether there were any noteworthy weather events that

could explain the four episodes. Id. 929:2–6. To do so, he considered “[w]hatever ground-based

rain gauge data was available, not just in the immediate area, but in the surrounding area.” Id.

934:2–5. As Mr. Rosenthal explained, however, “particularly in a desert region, you don’t have

the luxury of having as many weather stations as you would, say, in an urban area.” Id. 933:23–

934:1. Because of the spatial gaps, he also looked at radar data, id. 934:8–10, and satellite

the east and west sides of the floodplain to account for side-to-side movement, id. 845:18–846:8;

see also id. 869:6–19 (agreeing that a 1D HEC-RAS is “limited in its ability to . . . make

computations with energy in the lateral direction”).

22

imagery to get “the big picture,” id. 934:13–16, as well as National Weather Service bulletins

and advisories that provide warnings about inclement weather and potential flooding, id. 934:17–

23. See also id. 975:13–976:8 (explaining the sources of data a professional meteorologist uses to

address the scarcity of rain gauges in an area like the Carson Slough watershed).

Mr. Rosenthal testified that based on all of the data he considered, in his opinion, all four

flooding events at the Patch of Heaven (particularly those that occurred in 2010 and 2015) were

immediately preceded by “noteworthy” and “significant” weather events. Id. 937:15–18. For

example, there was a particularly strong and persistent “atmospheric river” during the period that

preceded the flooding at the end of December 2010. Id. 941:15–942:2, 942:21–943:8. This

atmospheric river impacted all of the Southwestern states, including Southern Nevada and the

Ash Meadows area in particular. Id. 944:14–18. It resulted in six days of rainfall in the area,

beginning December 17 and lasting through December 22, the day of the heaviest rainfall. Id.

942:12–20. During that period, Mr. Rosenthal testified, the amount of rainfall “dwarfed the

normal amounts expected” in the Carson Slough. Id. 948:7–13. In fact, he stated, for the six- to

seven-day period that the rain fell in the region, it averaged three hundred to five hundred

percent of the normal amount for the entire month of December. Id. 948:7–18. The rain gauge

for Amargosa Farms, which is just to the west of the Carson Slough watershed, showed that

during a three-day period, 1.77 inches of rain fell, which was 385% of the average rainfall for the

entire month of December. Id. 949:17–18, 950:17–20. 22 In addition, bulletins from NOAA as

well as the National Weather Service reveal widespread flooding across Southern Nevada. Id.

951:23–952:11.

Mr. Rosenthal testified that, similarly, in October of 2015, the southwestern United States

was in the midst of one of the strongest El Niño conditions on record. Id. 957:25–958:2. During

that period, storm systems were “really energized,” resulting in “periods of thunderstorms over

the deserts that dumped a lot of rain.” Id. 959:6–8. Mr. Rosenthal testified that the first period of

thunderstorms occurred on October 4 and 5, and then another occurred October 15 through 18,

just before flooding was observed on the Ministry’s property. Id. 959:20–960:12. He observed

that satellite imagery from October 18 showed “a whole line of thunderstorm activity moving

from south to north right through the watershed area that may or may not be reflected by the few

rain gauges” on the watershed’s periphery. Id. 963:9–13. Further, radar imagery showed that

“tremendous amounts of rain” fell “throughout the heart of the watershed” in a one-hour period

on October 18, between 10 and 11 AM. Id. 964:7–17. As a result, the National Weather Service

issued flood warnings, including warnings covering the Amargosa Valley. Id. 964:18–966:2.

Turning to the January 8, 2016 flood, Mr. Rosenthal testified that during the three-day

period that ended on January 6, there were a series of storms that came through the region, and

that, because it was another El Niño year, the storms were very energized. Id. 966:23–967:1. He

further stated that satellite imagery showed that on January 5 at around 4:30 PM, Ash Meadows

was experiencing moderate to heavy precipitation. Id. 967:9–24. Mr. Rosenthal also noted that

during this event there were widespread winter storm advisories regarding the severity of the

weather in Southern Nevada. Id. 969:2–16.

22

The Amargosa Farms gauge is one of two or three stations upstream and within 15 miles of the

Ministry’s property. Tr. vol. 4, 982:9–20.

23

Finally, Mr. Rosenthal stated that, just before the flooding that occurred on July 3, 2016,

very strong thunderstorms struck the area on June 30, July 1, and July 2. Id. 970:2–5. On June

30, powerful thunderstorms moved up from the south, and radar images show rainfall as much as

two inches in an hour in the region. Id. 971:8–13. They also show total rainfall of roughly

two-and-one-half inches from June 30 to July 1. Id. 971:25–972:7. As with the October 2015 rain

event, there were severe thunderstorm warnings and flood advisories some of which involved the

area of interest within Nye County. Id. 972:12–973:4.

DISCUSSION

Fifth Amendment Takings Standards

The Fifth Amendment to the United States Constitution provides that “private property”

shall not be “taken for public use, without just compensation.” U.S. Const. amend. V. To

establish entitlement to compensation under the Takings Clause, a plaintiff must first show that it

has “a property interest for purposes of the Fifth Amendment.” Members of the Peanut Quota

Holders Ass’n v. United States, 421 F.3d 1323, 1330 (Fed. Cir. 2005) (citing Conti v. United

States, 291 F.3d 1334, 1339 (Fed. Cir. 2002)). Once the plaintiff has established that it has a

property interest, as it is undisputed the Ministry has here, it must show that the government’s

actions “amounted to a compensable taking of that property interest.” Am. Pelagic Fishing Co. v.

United States, 379 F.3d 1363, 1372 (Fed. Cir. 2004).

It is well established that “government-induced flooding” of property can constitute a

compensable “taking” for purposes of the Fifth Amendment. See Ark. Game & Fish Comm’n v.

United States, 568 U.S. 23, 32 (2012) (noting that, “where real estate is actually invaded by

superinduced additions of water, earth, sand, or other material . . . so as to effectually destroy or

impair its usefulness, it is a taking, within the meaning of the Constitution”) (quoting Pumpelly

v. Green Bay Co., 80 U.S. 166, 181 (1872)). Further, flooding caused by government action need

not be permanent in nature to be treated as a taking. Government action that causes regularly

recurring flooding, as is alleged here, may “g[i]ve rise to a takings claim no less valid than the

claim of an owner whose land was continuously kept under water.” Id. (citing United States v.

Cress, 243 U.S. 316, 328–29 (1917) (noting that the government may effect a taking via

“intermittent but inevitably recurring overflows” no less than by permanently inundating the land

by water)); see also Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021) (observing that

“the government [] effects a physical taking when it occupies property . . . by recurring flooding

as a result of building a dam”).

As with other physical takings, however, to establish a compensable taking based on

recurrent flooding, the plaintiff must show by preponderant evidence that the government’s

actions were the direct and proximate cause of the flooding. St. Bernard Par. Gov’t v. United

States, 887 F.3d 1354, 1362 (Fed. Cir. 2018); Sanguinetti v. United States, 264 U.S. 146, 149–50

(1924); Loesch v. United States, 645 F.2d 905, 920 (Ct. Cl. 1981). Put another way, the plaintiff

must “establish that government action caused the injury to their properties,” i.e., “that the

invasion was the ‘direct, natural, or probable result of [that] authorized activity.’” St. Bernard

Par. Gov’t, 887 F.3d at 1359–60 (quoting Ridge Line Inc. v. United States, 346 F.3d 1346, 1355

24

(Fed. Cir. 2003)); see also Cary v. United States, 552 F.3d 1373, 1380 (Fed. Cir. 2009) (“For an

injury to be a compensable taking, the court must determine that no break in the chain of

causation existed between the suspected government authorized action and the injury.”). The

plaintiff must also “show that in the ordinary course of events, absent government action, [it]

would not have suffered the injury.” St. Bernard Par. Gov’t, 887 F.3d at 1362. In other words, it

must show “‘what would have occurred’ if the government had not acted.” Id. (quoting United

States v. Archer, 241 U.S. 119, 132 (1916)).

For the reasons set forth below, the Court finds that the Ministry did not prove that the

government’s construction of the berm and restoration channel caused the flooding that occurred

on its property. Nor did it prove that the flooding would not have occurred but for the project.

The Court therefore enters judgment for the government as to the Ministry’s takings claim.

Causation

The Ministry’s Allegation that the Camp Property Never Flooded Until After

the Government Built the Berm and Restoration Channel

A key allegation underlying the Ministry’s causation argument is that the northeast

portion of its property—i.e., the part of the property where the camp buildings are located—

never flooded until after FWS built the berm and restoration channel or at least that there is “no

evidence” that it did. Pl.’s Post-Trial Opening Br. (“Pl.’s Post-Trial Br.”) at 5, ECF No. 139. To

support its assertions, the Ministry relies largely if not entirely on the testimony of Pastor

Fuentes and Ronald Matheny, the prior owner. For the reasons set forth below, however, the

Court concludes that preponderant evidence shows that the area where the camp is located has

flooded in the past, before the channel was built.

Pastor Fuentes testified at trial that, beginning in late 2006, when the Ministry purchased

the property, see JX 5, and up until the project was completed in August 2010, the property had

never experienced the kind of severe flooding that later occurred in 2010 and 2015, tr. vol. 1,

99:11–17. But as described above, Pastor Fuentes also acknowledged during his RCFC 30(b)(6)

deposition that “the first time the property flooded” while the Ministry owned it was in 2007.

Ministerio Dep. 96:12–15. The day of and the day before that flooding event it had rained on the

upper watershed. Tr. vol. 1, 143:25–144:10. Pastor Fuentes testified that as rainfall flowed down

the watershed, id. 144:11–13, muddy water slightly overtopped the culvert and the banks of the

irrigation ditches, id. 78:18–79:23, 99:11–17, 141:1–5. And the floodwater dumped mud and silt

into a pond on the property that was fed by one of the irrigation ditches, id. 78:23–79:14,

requiring that Pastor Fuentes close it, id. 78:24–79:2, and hire a contractor to excavate it, id.

78:8–24.

The irrigation ditch that dumped floodwater in the pond ran through the northeastern

corner of the property, where the church camp was located. The Ministry downplays the

significance of this incident as an example of flooding that occurred before the project was built.

Pastor Fuentes appears to have believed that the incursion of flood waters was unusual and the

result of work FWS happened to be performing upstream. Id. 78:19–24. But FWS was not

performing work upstream. JS no. 10 (“Construction of the Fairbanks and Soda Springs

25

Restoration Project began in December 2009.”). The 2007 incident thus represented a pre-project

example of floodwaters entering the church camp area and causing at least some damage after

several days of rainfall in the upper watershed.

Mr. Matheny’s testimony also does not persuade the Court that all of the flooding which

occurred after the restoration project was completed was dramatically different from what had

occurred before. Mr. Matheny owned the property for over nine years, beginning in January

1997. PX 269 (quitclaim deed dated January 28, 1997). When he purchased the property, it was

“just bare land, sagebrush, and that’s it.” Tr. vol. 1, 170:16–19. Mr. Matheny cleared the land,

planted grass and trees, and kept the grass watered. Id. 170:20–24, 171:11–14, 179:1–10. He

testified that during his period of ownership he had never seen anything comparable to the

flooding that occurred in 2010. Id. 173:10–174:4, 189:21–190:4.

The Court does not question Mr. Matheny’s observation that he had never seen floods on

the property that compared with the 2010 flood. As described above, the flooding that occurred

on the property in 2010 was the most severe of the four events cited in the complaint. The

flooding that Pastor Fuentes witnessed on December 23 followed six days of rainfall whose

amounts Mr. Rosenthal testified “dwarfed the normal amounts expected” in the Carson Slough.

Tr. vol. 4, 948:7–13. Indeed, the rainfall during this six- to seven-day period was several times

the normal amount of rainfall for the entire month of December. Id. 948:13–18.

The Court found unpersuasive Dr. Reely’s testimony that the amount of rainfall that fell

in the days before the 2010 flood was unexceptional and no different from the rainfall that

occurred during Mr. Matheny’s period of ownership. Tr. vol. 2, 392:14–18. Dr. Reely considered

only rain gauge data and based his opinion on how much rain fell in a twenty-four-hour period.

Id. 393:17–22. In a desert area, there are relatively few rain gauges. Mr. Rosenthal, who, unlike

Dr. Reely, is an expert in meteorology, was able to address the spatial gaps by using radar,

satellite imagery, and other tools. See tr. vol. 4, 934:8–10, 934:13–23, 975:13–976:8.

Moreover, as Mr. Rosenthal testified, by looking only at an artificial twenty-four-hour

period, “you miss the significance of what was going on.” Id. 974:15–25. Dr. Reely was

“missing a big part of the picture of what actually occurred during each of these four flooding

events . . . especially for the December 2010 event, because that was a long duration event that

stretched six days.” Id. 974:16–20.

Further, the precipitation frequency will be different depending on the duration of a rain

event. Id. 974:15–975:8; see also tr. vol. 2, 463:15–464:20 (Reely testimony, agreeing on cross-

examination that the precipitation frequency will vary depending on the duration examined).

Rainfall of an inch in a twenty-four-hour period, for example, may be a common occurrence. But

if an inch of rain falls every day for six days or over the course of an hour, then that could equate

to a much lower statistical probability of reoccurrence. Tr. vol. 4, 955:18–25. The Court

therefore finds Dr. Reely’s use of only twenty-four-hour rain gauge data in his analysis a flawed

approach.

The Court credits Mr. Rosenthal’s opinion that, even if rain gauge data alone is used, the

rainfall that preceded the 2010 flood was likely to occur only once every twenty-five years. Id.

26

988:2–7. 23 The fact that Mr. Matheny never saw any flooding comparable to that which occurred

in 2010 therefore does not give rise to an inference that the flooding in 2010 was caused by the

restoration project.

Further, the Court does not understand Mr. Matheny’s testimony to be that the property

never experienced any flooding at all during other heavy rainfall events that occurred while he

owned the property. To the contrary, Mr. Matheny acknowledged that during heavy rainstorms

the property would “puddle up” and become “a sloppy mess.” Tr. vol. 1, 173:10–16. His

description of the property as “puddle[d] up” and “a sloppy mess” is imprecise. But it is not

inconsistent with the photographs and Pastor Fuentes’s description of the state of the northeast

portion of the property after several of the other less severe flood events. 24 Mr. Matheny did not

visit the property during or immediately following any flood event besides the one that occurred

in 2010 and therefore could not offer a comparison except as to the 2010 flood.

Equally important, the Ministry’s claim that before the restoration project the northeast

corner of the Ministry’s property never flooded is contrary to other evidence both circumstantial

and direct. To begin with, the property is located at the bottleneck of the Carson Slough

floodplain. JX 3 (FWS map of the Refuge and Carson Slough indicating the location of the

property). It is undisputed that other parts of the Ministry’s property to the west of the location of

the camp have flooded in the past. Tr. vol. 1, 182:8–11 (Matheny testimony). The Carson Slough

has flooded multiple times in recent memory, tr. vol. 2, 285:12–16 (Johnson testimony); tr. vol.

3, 610:10–11, 640:3–9 (Andress testimony), including in 2010 when flood water damaged roads

and infrastructure and entirely washed out the culvert that allowed the restoration channel to pass

under the Patch of Heaven access road, tr. vol. 3, 642:9–15. Further, the majority of the

forty-acre parcel the Ministry owns, including the camp itself, lies in a FEMA AO2 flood zone.

See DX 47. Because of the flood risk represented by that designation, Nye County ordinances

require property owners to elevate any buildings on their property by at least two feet. Tr. vol. 2,

286:13–287:4 (Johnson testimony).

The Ministry responds that neither the fact that the property is in a floodplain nor the fact

that parts of the Refuge have flooded with some regularity proves that the location of the Patch

of Heaven is prone to flooding. But the physical evidence also reflects that the specific site

23

This is according to the Desert Wildlife Refuge rain gauge in the watershed that Dr. Reely also

relied on. See tr. vol. 4, 976:21–977:1 (Rosenthal testimony); tr. vol. 2, 396:19–397:4 (Reely

testimony).

24

The floods in 2016, 2019, and 2020 did not flood the area where the buildings are located and

were primarily concentrated in areas away from the church camp’s buildings. Tr. vol. 1, 112:5–

19, 160:6–8 (Fuentes testimony as to January 2016 flood); id. 160:14–24 (as to July 2016 flood);

id. 115:2–14 (as to March 2019 flood); id. 116:1–18 (as to April 2020 flood); see also PXs 298,

300, 301, 306 (photographs of July 2016 event, tr. vol. 1, 113:2–114:3) (depicting areas of land

away from the buildings inundated with water); PXs 596 598, 608, 611, 620 (photographs of

March 2019 event, tr. vol. 1, 115:7–14) (depicting scattered puddles); PXs 703, 705

(photographs of March 2020 flood, tr. vol. 1, 116:1–117:20) (depicting flooding in the northeast

field only).

27

where the camp was built has flooded in the past. First, just to the northeast of the developed part

of the property is a network of braided channels that both experts agreed existed for many years

before the 2010 flood (even if that flood may have caused them to deepen), id. 356:15–23 (Reely

testimony); tr. vol. 3, 837:15–17 (Thompson testimony), and tracked flood water right at the

church camp’s buildings, tr. vol. 2, 356:7–14 (Reely testimony); tr. vol. 3, 837:18–23 (Thompson

testimony). Their existence reflects a history of flood waters coming from the northeast, moving

southwest, and being discharged directly into the northeast corner of the property that became

the Patch of Heaven. Tr. vol. 3, 836:22–838:17 (Thompson testimony).

Second, Mr. DesRoberts explained that certain aerial photographs—dated 1948, 1980,

1985, and 1989—depict Plaintiff’s property and the surrounding area, and show that floodwater

historically traveled through the developed portion of the property. All four photographs show

flood channels tracking directly through the northeast corner of the Patch of Heaven where the

buildings sit. Tr. vol. 3, 599:9–21, 601:12–602:4 (Defendant’s Exhibit 4) (1948 aerial image); id.

602:5–20, 603:3–10 (Joint Exhibit 27) (1980 aerial image); id. 604:18–605:5, 606:7–18 (Joint

Exhibit 14) (1985 and 1989 aerial images).

Finally, the Court notes that even if it were persuaded by the Ministry’s argument that the

property did not experience significant flooding during the fourteen-year period between 1997

(when Mr. Matheny bought it) and 2010, it could not base a finding of causation on such a “post

hoc, ergo propter hoc” analysis. See Loesch, 645 F.2d at 914; see also id. at 913 (rejecting

plaintiffs’ argument that they established causation by showing that “the erosion on their

riverbanks was not a problem until after” the government constructed dams that impounded

water); Owen v. United States, 20 Cl. Ct. 574, 584 (1990) (observing that post hoc analysis “can

easily lead to wrong inferences if there are other elements of causation at work”). Determining

the precise cause or causes of the floods requires consideration of hydrology, hydraulics,

meteorology, soil conditions, and other technical subjects. The Court turns, therefore, to the

competing opinions of the parties’ experts.

The Expert Testimony

As described in detail above, the parties each presented expert testimony regarding the

extent to which the restoration project caused the flooding of the Patch of Heaven that occurred

in 2010, 2015, and 2016. For the reasons set forth below, the Court finds the testimony of the

government’s expert, Dr. Thompson, more persuasive than that of the Ministry’s expert, Dr.

Reely.

To briefly recapitulate, Dr. Reely opined that the berm FWS installed to redirect the flow

of spring water into the new restoration channel obstructed the path that floodwater coming from

the upper watershed had taken in years past. Tr. vol. 2, 344:15–19. Specifically, Dr. Reely

explained, until the berm and restoration channel were built, floodwaters would travel down the

natural trace and exit to the west of the Ministry’s property via certain off-ramp channels, never

reaching the Patch of Heaven. Id. 343:12–344:14. Dr. Reely opined that the berm blocked

floodwater from going down the natural trace, and instead kicked it to the east where it would

then flow south and bend back west in an attempt to follow the trace of the restoration channel.

Id. 344:15–19. Dr. Reely further testified that, because the restoration channel had insufficient

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capacity to handle such large volumes of water, it would pour out of the western bank of the

channel and migrate toward the church camp, which he estimated was at a slightly lower

elevation by an order of approximately six to ten feet. Id. 344:19–23, 345:12–21, 351:8–17.

Flood flow would enter the braided channel network to the northeast of the Patch of Heaven—

where it would be directed straight into the church camp. Id. 344:23–345:3, 356:4–14.

As described above, Dr. Reely based his opinion regarding the effect of the restoration

project on his observations of the site during three visits as well as his review of topographical

maps, aerial photographs, rainfall data, and other reports. Dr. Reely performed no measurements

or calculations of the capacity of the restoration channel, never measured the size of the berm,

and did not attempt to determine the amount of flood water that came from upstream nor the

amount of water allegedly redirected by the berm during any of the events in question. He

performed no quantitative assessment of how water moves through the Carson Slough. Nor did

he perform any modeling to attempt to verify or substantiate the opinion he reached based on his

visual observations. Id. 317:7–318:9. And he provided no response to Dr. Thompson’s theory

that the water that flooded the Patch of Heaven in 2010, 2015, and beyond likely originated on

the eastern side of the Slough.

In the Court’s view, Dr. Reely’s opinion lacks a sound foundation. Eyeballing the

property and examining aerial photographs and maps strikes the Court as an analytic approach

that collides with Dr. Reely’s own observation that the Carson Slough is “a very complex bit of

terrain, and primarily because it’s very—topographically very subtle,” such that “very subtle

changes in this topography will change the way and have changed the way water flows across

this portion of the desert, of the watershed.” Id. 330:5–10.

Dr. Thompson took a more methodical approach that is consistent with what one would

expect from an expert in the field attempting to pinpoint the extent to which the restoration

project caused the Ministry’s property to flood. He testified that a “hydrologist would typically

want to do some kind of computational effort to support the formation of [his] opinions.” Tr. vol.

3, 794:19–21. In addition, he stated, “in this particular case and in many others, [a hydrologist]

might use . . . a hydrologic model for flow estimation, and then use the output from the

hydrologic model to operate a hydraulic model to determine how flow moves through the system

in question.” Id. 794:21–795:1. “And both of those efforts,” Dr. Thompson testified, “are

typically supported with some hand calculations or calculations using a spreadsheet or a similar

computational tool.” Id. 795:1–3. Dr. Reely did not use any of these methods.

Dr. Thompson has extensive experience not only as a practicing hydrologist but also in

academia, having taught hydrology at the undergraduate and graduate level for fourteen years,

led research projects, participated in numerous research studies, and published some fifty

conference proceedings. Id. 788:9–789:4, 789:19–23. The Court credits his testimony regarding

the methodology a hydrologist would ordinarily use to tackle an issue of causation like the one

presented by this case.

Dr. Reely, as noted, did not support his opinion with any measurements or quantifiable

data. Tr. vol. 2, 314:23–315:12. Further, he acknowledged that he could have used models to

justify the conclusions that he reached (and also that he uses models routinely in his work). Id.

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314:17–22, 318:10–21. But he asserted that it was unnecessary for him to build a model here

because he believed the physical evidence was so clear, id. 383:7–22, an opinion obviously not

shared by Dr. Thompson.

Because his opinion contains no supporting objective and verifiable data, Dr. Reely did

not persuade the Court that the restoration project caused the flooding about which the Ministry

complains. Moreover, Dr. Reely actually expressed no opinion—whether based on quantitative

data or otherwise—regarding whether the Ministry’s property would have flooded during the

events in question even absent the berm and restoration channel.

To be clear, the Court does not find that the berm did not divert into the church camp any

flood water that otherwise would have gone down the natural trace. 25 But Dr. Reely does not

explain for any of the flood events how much of the floodwater that would have gone down the

natural trace were it not for the berm was instead diverted east, winding up in the braided

channels and then flooding the Ministry’s property. Dr. Reely agreed that in 2010 the floodwater

overtopped the berm and followed its historic path down the natural trace. Tr. vol. 2, 442:24–

443:5. And Pastor Fuentes agreed that during the 2015 flood event, he saw “lots of water”

coming down the natural trace. Tr. vol. 1, 153:18–154:4. Therefore, the Court finds that during

both flood events at least some portion of the flood waters that came from the north continued to

follow the natural trace notwithstanding the presence of the berm. 26

Equally important, Dr. Reely’s opinion does not account for other possible causes of the

flooding. Dr. Thompson credibly testified, based on field observation and topographical data,

25

It bears noting, however, that physical evidence Dr. Reely relies on to show that the berm

caused floodwaters to be diverted into the church camp—i.e., the alligator cracking, tr. vol. 2,

349:4–350:25, and the erosion of the natural channels on the property, id. 378:5–379:4—is also

consistent with Dr. Thompson’s theory, discussed below, that floodwaters on the church camp

did not come originally from the west but instead originated on the eastern side of the Slough

and passed over the restoration channel in their southwesterly traverse down to the Ministry’s

property.

26

Plaintiff introduced aerial photographs into evidence that were taken after the October 2015

flood which show floodwater in the restoration channel and north of the berm, but not in the

natural trace of the Carson Slough. PXs 150, 151. Dr. Reely testified that these photographs

verify that floodwater never overtopped the berm in 2015 but were rather redirected by the berm

to the east—otherwise the photographs would have shown floodwater in the natural trace. Tr.

vol. 2, 373:24–374:4, 375:3–11. Dr. Thompson agreed that these photographs revealed no

floodwater south of the berm in the natural trace of the Carson Slough. Tr. vol. 3, 889:1–2,

890:19–891:17. But Dr. Reely explained that the photographs were taken after the peak flood

discharge had already passed through the area. Tr. vol. 2, 380:20–381:4. Dr. Thompson similarly

stated that because peak flood flows had passed, floodwater that overtopped the berm and went

into the natural trace would have already discharged down the trace and to the southwest of the

Carson Slough. Tr. vol. 3, 889:1–2, 890:19–891:5, 899:9–25. He further testified that the flood

water in those photographs in and around the restoration channel was residual flood flow that

had not yet discharged out the Carson Slough. Id. 899:25–900:2.

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and as supported by his models, that the floodwaters that flowed into the Patch of Heaven likely

had flowed downstream on the eastern part of the Slough and therefore would never have flowed

into the natural trace anyway. Tr. vol. 3, 819:6–12. Dr. Thompson opined that the waters came

down from the eastern part of the upper watershed and flowed to the southwest in the form of

sheet flooding. Id. 818:9–13, 843:7–21. According to Dr. Thompson, those waters would briefly

enter the restoration channel and then exit out of it on the western bank, entering the braided

channels that feed water directly into the camp area. Id. 818:14–17, 837:18–23. Aerial

photographs support Dr. Thompson’s opinion that sheet flooding occurred in this manner, see

PXs 108, 151; tr. vol. 3, 854:18–855:5 (describing Plaintiff’s Exhibit 108); tr. vol. 3, 810:25–

811:2, 814:2–7 (describing Plaintiff’s Exhibit 151), as does the testimony of Refuge Manager

Corey Lee, who stated that he witnessed this phenomenon in the wake of the March 2019 flood,

tr. vol. 3, 752:4–9. Dr. Reely never addressed the validity of this possible alternative cause of

flooding on the Patch of Heaven, and his theory does not challenge Dr. Thompson’s conclusions

on the impact of water approaching the Patch of Heaven from the northeastern side of the Carson

Slough.

As described in some detail above, Dr. Thompson also performed measurements and

calculations and used hydraulic and hydrologic modeling to support his conclusions. Using

HEC-HMS modeling software, Dr. Thompson estimated that approximately 1,600 to 3,200 cfs of

floodwater passed through the watershed during the 2010, 2015, and 2016 flood events, and that

the capacity of the restoration channel was only between 35 to 75 cfs. Id. 814:19–815:6, 809:19–

25, 810:5–6. 27 Given the very limited capacity of the restoration channel when compared to the

volume of water coming from the upper watershed, Dr. Thompson concluded, the restoration

channel would have been overwhelmed by the floodwaters and would have at most “a minimal

impact . . . on flows that are approaching plaintiff’s property.” Id. 817:22–818:1.

Having concluded that the restoration channel could not have had a significant impact on

the movement of flood flows heading to the Ministry’s property, Dr. Thompson used a HEC-

RAS model to understand what would have occurred during the flood events in question if there

were no restoration project. The purpose of the model was to determine the source of the

flooding, assuming that it was not the berm or restoration channel. Based on that modeling, Dr.

Thompson concluded that the floodwaters that spread down the eastern side of the Carson

27

Dr. Reely agreed that Dr. Thompson’s calculations regarding the capacity of the restoration

channel were reasonable and estimated himself that the capacity is “probably somewhere in the

10 to 35 cfs range.” Tr. vol. 2, 441:4–16. Dr. Reely did, however, criticize Dr. Thompson’s

exclusion of the Amargosa Farms rain gauge in his analysis (a rain gauge that is close to the

Patch of Heaven but outside of the watershed) and stated that, had Dr. Thompson included that

rain gauge, “he may or may not have decided to use a slightly lower rainfall precipitation amount

than he used in his analysis.” Id. 331:10–17. But Dr. Thompson explained that it was his

“professional preference” to use rain gauges in his hydrologic modeling that are within the

boundaries of the watershed. Tr. vol. 3, 826:15–20. Additionally, Dr. Reely did not himself

calculate the amount of runoff in the Carson Slough using rain gauge data, so did not and could

not offer to the Court an alternative conclusion on the amount of flood flow. Tr. vol. 2, 450:13–

451:3.

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Slough would have caused flooding of the property even if the restoration channel were not there

any time peak discharge reached a volume of 1,600 cfs or greater. Id. 817:9–13, 819:14–820:6. 28

HEC-HMS and HEC-RAS models are commonly used tools in the field of hydrology.

See tr. vol. 2, 308:8–13 (Reely testimony, stating that the HEC-RAS model is the most common

one he uses); tr. vol. 3, 794:19–795:3 (Thompson testimony, stating that a hydrologist would

“typically” make “some kind of computational effort,” such as using hydrologic and hydraulic

modeling). Dr. Reely acknowledged that he has used them “very frequently” in his work. Tr. vol.

2, 308:20–24. Models are, however, imperfect, and their accuracy depends in large part on the

assumptions and data inputs a hydrologist uses to build them. Id. 384:10–385:6. It is therefore

significant that Dr. Reely never attempted to impeach any of the specific data sets or assumptions

Dr. Thompson used to build his HEC-HMS model. See id. 334:7–14 (approving the topographic

data Dr. Thompson used to develop his hydraulic models).

Dr. Reely testified that it is important to field validate hydraulic and hydrologic models.

Id. 333:10–13. Dr. Thompson did conduct such validation as to the HEC-HMS model’s

conclusions of the amount of flood runoff during flood events. Tr. vol. 3, 817:3–6. The Court

therefore credits Dr. Thompson’s opinions, based on his HEC-HMS models, regarding the

capacity of the restoration channel and the fact that the restoration channel could not have had a

significant impact on flood flows coming down the watershed.

Dr. Reely also expressed some criticisms of Dr. Thompson’s HEC-RAS model. For

example, Dr. Reely testified that 1D HEC-RAS models, like the one Dr. Thompson employed,

have a limited capacity to predict lateral movement of water. Tr. vol. 2, 385:9–15; see also tr.

vol. 3, 869:1–19 (Thompson testimony, acknowledging that 1D HEC-RAS models are limited in

their ability to show lateral movement of water). Dr. Reely also testified that 1D HEC-RAS

models are not good at simulating changes in the momentum of water that may occur where

there are tight turns, as with water deflected off of the berm. Tr. vol. 2, 385:16–25. But Dr.

Thompson inserted “lateral weirs” that permit the model to move water laterally from one side of

the weir to the other. Tr. vol. 3, 812:10–14, 845:20–24. Dr. Reely’s testimony does not address

the extent to which the use of lateral weirs alleviated these concerns.

Dr. Reely also criticized Dr. Thompson for failing to field validate his HEC-RAS model,

tr. vol. 2, 333:10–16, as he did his HEC-HMS model, tr. vol. 3, 817:3–6. The HEC-RAS model

Dr. Thompson developed, however, was just one tool he used to help him understand the

watershed, and while field validation of the model would have bolstered the opinion he reached

based on the HEC-RAS model, the Court found the rest of his testimony regarding causation

persuasive, including his conclusions based on visual observations and the HEC-HMS model.

In its brief and on cross-examination, the Ministry also criticizes Dr. Thompson’s HEC-

RAS model on the grounds that it yielded results that were in some respects inconsistent with

evidence of what actually occurred during the 2010 and 2015 flood events. See Pl.’s Post-Trial

28

Dr. Thompson’s HEC-HMS model showed that the floods of 2010 and 2016 would have

exceeded 1,600 cfs of flow and the flood flow of October 2015 would have been 1,570 cfs. Tr.

vol. 3, 814:19–815:6.

32

Br. at 37–41; tr. vol. 3, 891:18–895:23, 878:12–24, 882:11–22, 883:19–884:6. The Court is not

sure what to make of this concern because during his testimony Dr. Reely did not address any of

the specific alleged inconsistencies. As noted, Dr. Thompson concluded, based on the results of

the HEC-HMS modeling, that—given its limited capacity—the restoration channel could not

have had any impact on whether or not flooding occurred on the Ministry’s property. Dr.

Thompson therefore built his HEC-RAS model without the berm or restoration channel in it. It is

therefore unclear to the Court what significance to assign to the fact that, for example, his HEC-

RAS model of the 2010 flood did not show floodwater in the area where the restoration channel

meets the Patch of Heaven access road and where the 2010 flood blew out the culvert under the

road. See tr. vol. 3, 878:15–879:25, 895:5–23. For all the Court knows, it may be that it did not

show floodwater in that precise location because the model did not include the restoration

channel, which meant there was no culvert to be washed away.

A second criticism of Dr. Thompson’s model is that it showed water in the natural trace

during the October 2015 flood, but that aerial photographs taken shortly after peak flooding did

not. Id. 889:4–891:5. Dr. Thompson explained that because these photographs were taken after

peak flood flows had passed through, waters in the natural trace would have already discharged

out the Carson Slough. Id. 899:9–900:2.

In any event, and most importantly, even if Dr. Thompson’s models were less than

perfect, it is of little consequence because it was not the government’s burden to show causation.

It was the Ministry’s burden to prove that the project caused its property to flood and also that

the floods would not have occurred were it not for the berm and restoration channel. Dr. Reely’s

testimony did not persuade the Court on either point because it was not supported by quantifiable

data, did not address in any way possible alternative causes of the flooding, and presented an

inaccurate picture of the extent to which the rainfall that accompanied the 2010 and 2015 floods

was exceptional. Further, as noted, Dr. Reely never offered an opinion on whether, even absent

the berm and restoration channel, the property still would have flooded as a result of waters

coming from the eastern side of the upper watershed.

In short, the Ministry failed to prove that the restoration project caused the flooding of its

property. To the contrary, the weight of the evidence shows that the property would have flooded

even if the berm and restoration channel had never been built. The Ministry has therefore failed

to meet its burden to show causation.

CONCLUSION

On the basis of the foregoing, the Clerk is directed to enter judgment for the government.

IT IS SO ORDERED.

s/ Elaine D. Kaplan

ELAINE D. KAPLAN

Chief Judge

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