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

In the United States Court of Federal Claims

No. 21-1415

Filed: June 9, 2022

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BOARD OF SUPERVISORS OF )

ISSAQUENA COUNTY, MISSISSIPPI, )

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Plaintiff, )

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v. )

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THE UNITED STATES, )

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Defendant. )

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

Brad Eric Leneis, U.S. Department of Justice, Environment & Natural Resources Division,

Washington, D.C. for defendant.

OPINION & ORDER

SMITH, Senior Judge

Before the Court is defendant’s Motion to Dismiss the Complaint under Rule 12(b)(6) of

the Rules of the United States Court of Federal Claims (“RCFC”) for failure to state a claim

upon which relief can be granted. For the reasons discussed below, the Court grants defendant’s

Motion to Dismiss.

I. Background

Plaintiff, the Board of Supervisors of Issaquena County, Mississippi, is the

“governmental body responsible for the general operation and governmental functions of

Issaquena County.” See Plaintiff’s Amended Complaint at 4, ECF No. 9 [hereinafter Am.

Compl.]. As part of its governmental function, plaintiff owns, maintains, or is otherwise

responsible for “right of ways, easements, and other governmental infrastructure which

provide[s] inter-alia for the transportation needs” of people within Issaquena County (“the

County”). See id. at 2. The County lies in a geographical region known as the Mississippi Delta,

“bordering the Mississippi River on the west and the Yazoo River to the east.” Id. at 1, 6; see

also Defendant’s Motion to Dismiss at 2–3, ECF No. 10 [hereinafter Def.’s Mot. to Dismiss].

The Mississippi Delta routinely experiences periods of excessive rainfall which causes

flooding. Am. Compl. at 5–6. In 1936, Congress considered a plan to alleviate flooding in the

region by constructing a floodway to divert excess water from the Mississippi River, but the plan

was abandoned in 1941 and the floodway was never built. Id. at 5–6; Def.’s Mot. to Dismiss at

13; see also 33 U.S.C. §§ 702a-1, 702a-12(a). Instead, the government built the Yazoo

Backwater Project (the “Project”), a levee system to shield portions of the County near the

confluence of the Mississippi and Yazoo rivers from flooding. Am. Compl. at 5.

The Project uses floodgates, such as the Steele Bayou Control Structure, and levees to

control flood levels during periods of high-water stages along the Mississippi and Yazoo Rivers.

Id. at 6. During these periods, upstream flooding can occur when the rivers are saturated by rain,

exceed their capacity to pass the accumulated rainfall, and water backs up in the river

downstream. See id. at 5–6; see also Def.’s Mot. to Dismiss at 1. This process is known as

“backwater flooding.” See Am. Compl. at 5–6; see also Def.’s Mot. to Dismiss at 1, 3. When

the Mississippi and Yazoo Rivers experience high-water levels, the floodgates at the Steele

Bayou Control Structure close to prevent backwater flooding in the drainage area protected by

the Project’s levee system (the “Yazoo Backwater area”). Am. Compl. at 6. Anytime the water

level behind the floodgates (i.e., the landside) is higher than the water level in front of the

floodgates (i.e., the riverside), and above the 70-foot water level, the floodgates are opened to

drain runoff water from the Yazoo Backwater area into the Yazoo and Mississippi rivers. See

Final Supplement No. 2 to the 1982 Yazoo Area Pump Project Final Environmental Impact

Statement [hereinafter 2020 EIS], Appx. G: Engineering Report at 69.1 When the water level on

the riverside is higher than that of the landside, the floodgates are closed to prevent backwater

flooding. Id.

Once the floodgates close, water does not pass between the Yazoo Backwater area and

the rivers. Am. Compl. at 6. Any additional rain that falls in the drainage area behind the

floodgates can pond and cause flooding in the Yazoo Backwater area. Id. However, the Steele

Bayou Control Structure operates to reduce the water level in the Yazoo Backwater area and

only holds back excess water on the landside from draining when the water level on the riverside

is higher (i.e., when backwater flooding will occur). See 2020 EIS, Appx. G at 65–66. The

Project originally contemplated a pump station near the Steele Bayou Control Structure to drain

ponded water behind the levees, but it was never installed. Am. Compl. at 6; see also Def.’s

Mot. to Dismiss at 11–12.

Starting in the fall of 2018, the Mississippi River experienced an extended period of near

record-high water levels, forcing an extended closure of the gates at the Steele Bayou Control

Structure to prevent the Mississippi River from flooding the Yazoo Backwater area behind the

floodgates. Am. Compl. at 7; see also 2020 EIS, Appx. G at 65. Simultaneously, large amounts

of rainfall accumulated behind the Project’s levees, affecting 550,000 acres of the Yazoo

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In considering a motion to dismiss, the Court may properly take judicial notice of the contents

of public documents. See Sebastian v. United States, 185 F.3d 1368, 1374 (Fed. Cir. 1999). In

this instance, both parties have presented the 2020 EIS in their respective briefs to the Court and

have not disputed its factual content. See Defendant’s Motion to Dismiss at 3, 5, ECF No. 10;

see also Plaintiff’s Opposition to the United States’ Motion to Dismiss at 7, ECF No. 11.

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Backwater area, including parts of Issaquena County. Am. Compl. at 7; see also 2020 EIS,

Appx. G at 65. The region remained in flood until the floodwaters receded in August 2019. Am.

Compl. at 7; see 2020 EIS, Appx. G at 66. The prolonged flooding damaged approximately 687

residences and eroded and damaged infrastructure, including roads, culverts, pipes, and drainage

structures owned and maintained by the Plaintiff. Am. Compl. at 4, 7–8.

On June 1, 2021, plaintiff filed its Complaint in this Court, seeking relief for defendant’s

alleged taking of property “without just compensation in violation of the Fifth Amendment to the

United States Constitution.” See Complaint at 9, ECF No. 1. On October 4, 2021, plaintiff filed

its Amended Complaint. See Am. Compl., ECF No. 9. On November 18, 2021, defendant filed

its Motion to Dismiss. See Def.’s Mot. to Dismiss, ECF No. 10. On December 16, 2021,

plaintiff filed its response. See Plaintiff’s Opposition to the United States’ Motion to Dismiss,

ECF No. 11 [hereinafter Pl.’s Resp.]. On January 11, 2022, defendant filed its reply. See United

States’ Reply in Support of its Motion to Dismiss, ECF No. 14 [hereinafter Def.’s Reply].

Defendant’s Motion to Dismiss is fully briefed and ripe for review.

II. Motion to Dismiss

A. Legal Standard

Defendant moves to dismiss plaintiff’s Complaint under RCFC 12(b)(6) for failure to

state a claim upon which relief can be granted. See Def.’s Mot. to Dismiss at 22.

To survive dismissal, plaintiff’s Complaint must “contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has

“facial plausibility” when the “plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

678 (emphasis added). Importantly, “facial plausibility” is “not akin to a probability

requirement”; rather, the plausibility standard “asks for more than a sheer possibility that a

defendant has acted unlawfully.” Id. “[W]hile the pleading standard does not require ‘detailed

factual allegations,’ it does require more than ‘labels and conclusions.’” Peraton Inc. v. United

States, 146 Fed. Cl. 94, 100 (2019) (internal citations omitted).

When reviewing the complaint, the Court will assume the veracity of well-pleaded

factual allegations, and then “determine whether they plausibly give rise to an entitlement to

relief.” Iqbal, 556 U.S. at 679. However, the Court “must not mistake legal conclusions

presented in a complaint for factual allegations which are entitled to favorable inferences.”

Peraton, 146 Fed. Cl. at 100 (citations omitted). The Court is “not bound to accept as true a

legal conclusion couched as a factual allegation,” or be satisfied with “a formulaic recitation of

the elements of a cause of action.” See Twombly, 550 U.S. at 555 (citations omitted).

Furthermore, the Court is not required to accept allegations that “contradict matters properly

subject to judicial notice or by exhibit.” Terry v. United States, 103 Fed. Cl. 645, 652 (2012)

(citations omitted).

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Determining whether a complaint has stated a plausible claim for relief is a “context-

specific task that requires the reviewing court to draw on its judicial experience and common

sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint has alleged—but it has not

‘show[n]’—‘that the pleader is entitled to relief.’” Id. (citing Fed. R. Civ. P. 8(a)(2)). The Court

will analyze whether well-pleaded factual allegations nudge plaintiff’s claim “across the line

from conceivable to plausible.” Id. at 680. A complaint should be dismissed under RCFC

12(b)(6) “when the facts asserted by the claimant do not entitle [them] to a legal remedy.”

Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002).

B. Discussion

Plaintiff seeks relief for defendant’s alleged taking of property “without just

compensation in violation of the Fifth Amendment to the United States Constitution.” See Am.

Compl. at 9. According to plaintiff, the County has suffered repeated flooding because of

defendant’s “acts or inactions” involving the levee system used to manage high-water stages on

the Mississippi and Yazoo rivers. See id. at 2, 6, 9. Specifically, plaintiff alleges that the closure

of the Steele Bayou Control Structure caused flooding of its property and if the government had

constructed a pumping system or alternative drainage route as originally planned, “the current

flooding and taking of [its] property also would not have occurred.” Id. at 8.

Defendant argues that plaintiff’s Complaint is defective in two respects: (1) plaintiff

cannot state a valid takings claim premised on government inaction, as opposed to government

action; and (2) plaintiff’s allegations fail to establish a necessary element of a takings claim, i.e.,

causation between government action and plaintiff’s injury. See Def.’s Mot. to Dismiss at 16. In

response, plaintiff insists that its claim is based on both affirmative government action and

inaction. See Pl.’s Resp. at 10; see also Pl.’s Resp. at 13 (“it was both the actions of the

government in building the levees and water control structures, as well as its inactions in failing

to complete the pumps, that led to [the] taking.” (emphasis in original)). Plaintiff further argues

that defendant applies a “heightened pleading standard” regarding causation and that it has

“clearly pled a cause of action that is ‘plausible on its face.’” Id. at 15 (citation omitted).

i. Government Inaction

It is well-settled that a plaintiff cannot bring a Fifth Amendment takings claim for

flooding caused by government inaction. See, e.g., United States v. Sponenbarger, 308 U.S. 256

(1939); St. Bernard Parish Gov’t v. United States, 887 F.3d 1354 (Fed. Cir. 2018); Georgia

Power Co. v. United States, 633 F.2d 554 (Ct. Cl. 1980). The government may only be liable for

property loss that is the “direct, natural, or probable result of authorized government action.” St.

Bernard Parish Gov’t, 887 F.3d at 1359–60 (citing Arkansas Game & Fish Comm’n v United

States, 568 U.S. 23 (2012)) (emphasis added). Thus, the government cannot be liable for any

takings claim which stems from government inaction because takings claims are premised on

affirmative acts by the government. See id. at 1360.

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Here, plaintiff makes allegations of government inaction which cannot support a Fifth

Amendment takings claim. Plaintiff alleges that its injury “is the direct, natural and foreseeable

result of the affirmative acts or inaction of the United States.” Am. Compl. at 3 (emphasis

added); see also Am. Compl. at 2, 8–9; Pl.’s Resp. at 10). Specifically, plaintiff points to

defendant’s failure to construct pumps to remove accumulated ponding behind the levee system

and a floodway for the Yazoo Backwater area as a cause for its injury. See Am. Compl. at 6

(“[T]he pumping facilities have never been completed, and no alternative drainage system has

been devised.”); see also Am. Compl. at 7 (“Because the pumps were never completed, an

estimated 687 homes were flooded . . . .”). Plaintiff alleges that “[h]ad the pumps been installed

as per the original plans of the Yazoo Backwater Project, or alternative drainage routes been

constructed, the current flooding and taking of [its] property also would not have occurred.” Id.

at 8. In other words, plaintiff argues that the government should have taken some action to

prevent the flooding that occurred. See id. Thus, plaintiff’s takings claim is plainly based on

government inaction.

Government inaction, however, cannot serve as the basis for a valid Fifth Amendment

takings claim. The Supreme Court and the Federal Circuit have rejected similar claims asserting

takings liability against the federal government when premised on government inaction or failure

to act. See United States v. Sponenbarger, 308 U.S. 256, 265 (1939) (holding that no taking

occurred when the government-built flood protection system, built to safeguard a large area from

existing flood hazards, was inadequate to protect plaintiff’s property from flooding); see also St.

Bernard Parish, 887 F.3d at 1357–58, 1360 (holding that the government’s failure to maintain or

modify a navigational channel did not support a valid takings claim). In Sponenbarger and St.

Bernard Parish, the Court did not find a taking when a government-built flood protection system

or navigational channel flooded plaintiff’s property because these claims were premised on

government inaction. Id.; St. Bernard Parish, 887 F.3d at 1357–58, 1360. Similarly, plaintiff

here fails to establish a valid takings claim because the government’s liability cannot be

premised on its failure to construct backwater pumps, a floodway for alternative drainage, or the

Yazoo Backwater Project as originally planned, as these are allegations based on the

government’s failure to act. See St. Bernard Parish, 887 F.3d at 1360–62; see Sponenbarger,

308 U.S. at 265.

Alternatively, to the extent that plaintiff argues liability premised on government action

and inaction in combination based on the holding In re Upstream Addicks & Barker (Texas)

Flood-Control Reservoirs, plaintiff misses the mark. See Pl.’s Resp. at 10–13. In Upstream

Addicks & Barker, the Court found the government liable for a taking of plaintiffs’ property

based on the construction of the Addicks and Barker dams, which impounded the storm water

left by Hurricane Harvey in flood-pool reservoirs. 146 Fed. Cl. 219, 255 (2019). While the

Court noted that “aspects of the original design . . . were not completed” and that the government

purchased less land to store runoff than originally planned, the Court did not premise its holding

on the government’s inaction. See id. at 231–233, 257–58. Rather, the Court found the

plaintiffs’ injury was the “direct result of the government’s construction, modification, and

operation of the Addicks and Barker Dams” because the government designed the dams’ flood-

pool reservoirs to encompass plaintiffs’ properties. Id. at 254. Therefore, Upstream Addicks

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reinforces that takings liability under the Fifth Amendment are premised on affirmative

government action—not government inaction.

Therefore, plaintiff’s allegations premised on the government’s inaction—failure to

construct backwater pumps, a floodway for alternative drainage, or even the Yazoo Backwater

Project as initially planned—do not support a Fifth Amendment takings claim. See St. Bernard

Parish, 887 F.3d at 1360–62.

ii. Government Action

Plaintiff’s takings claim is also premised on allegations that government action caused its

property to flood. Am. Compl. at 8–9. Plaintiff’s Complaint identifies two affirmative

government actions as a basis for plaintiff’s Fifth Amendment taking claim: (1) the operation of

the Steele Bayou Control Structure; and (2) the construction of the Yazoo Backwater project.

Am. Compl. at 8–9. Plaintiff alleges that the closure of the Steele Bayou Control Structure

caused flooding in the Yazoo Backwater area. See Am. Compl. at 7; see also Am. Compl. at 8

(“The design, construction, and subsequent operation of the Yazoo Backwater Project and the

Steele Bayou Control Structure by the [government] resulted in the direct, natural and

foreseeable flooding of Plaintiff’s property.”). Plaintiff argues that, for the purposes of

overcoming a motion to dismiss, the complaint need only “plausibly ple[ad] that the flooding on

their lands is the direct, natural and foreseeable result of authorized government activity.” Pl.’s

Resp. at 15.

To plead a plausible takings claim, plaintiff must plead sufficient facts to support each

element of its claim. See Twombly, 550 U.S. at 555. One such element is causation, where

plaintiff bears the burden of proving that government action caused its injury. See St. Bernard

Parish, 887 F.3d at 1362. “In order to establish causation, a plaintiff must show that in the

ordinary course of events, absent government action, [it] would not have suffered the injury.” Id.

(citing United States v. Archer, 241 U.S. 119 (1916)). To properly allege causation for a Fifth

Amendment taking in the flooding context, plaintiff must allege that its injuries caused by

flooding would not have occurred “but-for” government action. Id. at 1364. For example, in

Archer, the plaintiffs claimed that the government’s construction of a dike on their property

constituted a taking because the construction deposited sand and gravel on their land. 241 U.S.

at 128. The Supreme Court remanded the case to determine “what would have occurred if the

dike had not been constructed,” due to the possibility that without the dike, a river may have

permanently submerged the property anyways. Id. at 132. This “but-for causation” is a required

element of any takings claim. See St. Bernard Parish, 887 F.3d at 1364.

As part of that causation analysis, the Court considers all relevant government actions,

not just individual government actions, and whether these actions, in total, caused plaintiff’s

injury. See id. at 1364–65. For example, in St. Bernard Parish, the plaintiffs argued that the

government’s construction and operation of a navigational channel caused flooding on their

property. 887 F.3d at 1364. The Federal Circuit, however, found that the plaintiffs failed to

consider the impact of a related government levee project designed to reduce flooding on the

plaintiffs’ property. Id. at 1363–64. The Federal Circuit thus held that, as a matter of law, there

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was no taking liability because the plaintiffs only considered “isolated government actions” and

because the “plaintiffs failed to present evidence comparing the flood damage that actually

occurred to the flood damage that would have occurred if there had been no governmental action

at all.” Id. Thus, plaintiff cannot demonstrate “but-for” causation without addressing all

government action relevant to its injury.

Here, the Court finds that plaintiff has failed to allege causation for a Fifth Amendment

taking. To demonstrate causation for a Fifth Amendment taking in the flooding context, plaintiff

must allege that its injuries caused by flooding would not have occurred “but-for” the totality of

all relevant government action. See Archer, 241 U.S. at 128, 132. In other words, plaintiff must

allege sufficient facts to support that the government’s construction and operation of the Yazoo

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

been built. See St. Bernard Parish, 887 F.3d at 1364. However, plaintiff’s Complaint does not

contain such allegations and therefore does not support plaintiff’s claim for a Fifth Amendment

taking.

Plaintiff’s allegations do not establish what damage would have occurred “but-for” the

totality of government action—i.e., had the government not built the Yazoo Backwater Project at

all. Plaintiff’s allegations only address the fact that the Steele Bayou floodgates and backwater

levees kept runoff within the Yazoo Backwater area, while ignoring the overall effect of the

Yazoo Backwater Project on mitigating backwater flooding to plaintiff’s land. See Am. Compl.

at 8. Specifically, plaintiff does not consider whether the Yazoo Backwater Project caused more

flooding to plaintiff’s properties than if the Project was operated differently or was never

constructed. See generally, Am. Compl.; see also Pl.’s Resp. at 15 (arguing that plaintiff “need

not specifically aver” such a causal statement). Plaintiff repeats conclusory statements that its

injury was “a direct, natural and foreseeable result” of government action. See, e.g., Am. Compl.

at 9. Plaintiff has therefore failed to properly plead causation—that its injuries caused by

flooding would not have occurred “but-for” government action—which is an essential element of

a Fifth Amendment takings claim. See St. Bernard Parish, 887 F.3d at 1362. Without properly

alleging causation, plaintiff fails to state a Fifth Amendment takings claim and its Complaint

should be dismissed under RCFC 12(b)(6).

III. Conclusion

In summary, the Court concludes that plaintiff’s allegations of government inaction do

not state a valid takings claim, and that plaintiff has not alleged sufficient facts to show that the

construction or operation of the Yazoo Backwater Project caused its injury. For the reasons set

forth above, defendant’s Motion to Dismiss is hereby GRANTED. The Court directs the Clerk

to enter judgment accordingly.

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IT IS SO ORDERED.

s/ Loren A. Smith

Loren A. Smith,

Senior Judge

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