Amicus Curiae Brief — St. Bernard Parish, et al., Petitioners v. United States

No. 18-359

In the

Supreme Court of the United States

ST. BERNARD PARISH GOVERNMENT, et al.,

Petitioners,

v.

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Federal Circuit

BRIEF FOR AMICI CURIAE CATO INSTITUTE, NATIONAL

FEDERATION OF INDEPENDENT BUSINESS SMALL

BUSINESS LEGAL CENTER, REASON FOUNDATION,

SOUTHEASTERN LEGAL FOUNDATION, PROPERTY RIGHTS

FOUNDATION OF AMERICA, NATIONAL ASSOCIATION

OF REVERSIONARY PROPERTY OWNERS, OWNERS’

COUNSEL OF AMERICA, NATIONAL ASSOCIATION OF

HOME BUILDERS, AND PROFESSORS JAMES W. ELY, JR.,

SHELLEY ROSS SAXER, AND ROBERT H. THOMAS

IN SUPPORT OF PETITIONERS

Ilya Shapiro

Cato Institute

1000 Massachusetts Ave., NW

Washington, DC 20001

(202) 842-0200

Counsel for Cato Institute

Mark F. (Thor) Hearne, II

Counsel of Record

Stephen S. Davis

Meghan S. Largent

Lindsay S.C. Brinton

A bram J. Pafford

A rent Fox, LLP

1717 K Street, NW

Washington, DC 20006

(202) 857-6000

thornet@ix.netcom.com

Counsel for Amici Curiae

(Additional Counsel Listed on Inside Cover

and on the Signature Block)

283601

Luke Wake

NFIB Small Business

Legal Center

921 11th Street, Suite 400

Sacramento, CA 95814

(916) 448-9904

Devala A. Janardan

National A ssociation of

Home Builders

1201 15th Street, NW

Washington, DC 20005

(202) 266-8200

Counsel for NFIB Legal

Center

Counsel for National Association

of Home Builders

Kimberly S. Hermann

Southeastern Legal

Foundation

560 West Crossville Road,

Suite 104

Roswell, GA 30075

(770) 977-2131

Shelley Ross Saxer

Laure Sudreau Endowed Chair

Pepperdine University

School of Law

24255 Pacific Coast Highway

Malibu, CA 90263

(310) 506-4657

Counsel for Southeastern

Legal Foundation

Manuel S. Klausner

Law Offices of

Manuel S. Klausner

One Bunker Hill Building

601 West Fifth Street

Los Angeles, CA 90071

(213) 617-0414

Counsel for Reason

Foundation

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 6

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . 10

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

I.

The Federal Circuit adopted a paradigm

contrary to this Court’s Takings Clause

jurisprudence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II. The Federal Circuit’s action versus

in a c ti o n d ichot omy i s cont r a r y t o

established Takings Clause jurisprudence

as followed by state courts. . . . . . . . . . . . . . . . . . 16

III. The Federal Circuit has national jurisdiction

over every inverse condemnation action

against the United States. . . . . . . . . . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Arkansas Game & Fish Comm’n v.

United States,

637 F.3d 1366 (Fed. Cir. 2011), rev’d,

568 U.S. 23 (2012) . . . . . . . . . . . . . . . . . . . . . . . . passim

Armstrong v. United States,

364 U.S. 40 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Arreola v. County of Monterey,

122 Cal. Rptr. 2d 38 (Cal. Ct. App. 2002) . . 1, 7, 18, 19

Barnes v. United States,

538 F.2d 865 (Ct. Cl. 1976) . . . . . . . . . . . . . . . . . . . . . 15

Big Oak Farms, Inc. v. United States,

No. 1:11CV275 (Court of Federal Claims) . . . . . . . . 23

Bureau of Mines of Maryland v.

George’s Creek Coal & Land Co.,

321 A.2d 748 (Md. 1974) . . . . . . . . . . . . . . . . . . . . . . . 17

Cotton Land Co. v. United States,

109 Ct. Cl. 816 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Electro-Jet Tool & Manufacturing Co. v.

Albuquerque,

845 P.2d 770 (N.M. 1992) . . . . . . . . . . . . . . . . . . . 19, 20

iii

Cited Authorities

Page

First English Evangelical Lutheran Church of

Glendale v. Los Angeles County,

482 U.S. 304 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Goose Creek Hunting Club, Inc. v. United States,

518 F.2d 579 (Ct. Cl. 1975) . . . . . . . . . . . . . . . . . . . . . 14

House v. Los Angeles County Flood Control District,

153 P.2d 950 (Cal. 1944) . . . . . . . . . . . . . . . . . . . . . . . 18

Ideker Farms, Inc. v. United States,

No. 1:14CV183 (Court of Federal Claims) . . . . . . . . 23

In re Addicks & Barker Flood-Control

Reservoirs,

No. 1:17CV3000 (Court of Federal Claims) . . . . . . . 23

In re Katrina Canal Breaches Consolidated

Litigation,

577 F. Supp. 2d 802 (E.D. La. 2008) . . . . . . . . . . . . . . 5

In re Katrina Canal Breaches Consolidated

Litigation,

647 F. Supp. 2d 644 (E.D. La. 2009), aff’d in part,

rev’d in part, 696 F.3d 436 (5th Cir. 2012) . . . . 5, 9, 10

Jordan v. St. Johns County,

63 So. 3d 835 (Fla. Ct. App. 2011) . . . . . . . . . . . 1, 7, 19

Leo Sheep Co. v. United States,

440 U.S. 668 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

iv

Cited Authorities

Page

Litz v. Maryland Department of the

Environment,

131 A.3d 923 (Md. 2016) . . . . . . . . . . . . . . . . . . . . 16, 17

Marine Ins. Co. of Alexandria v. Tucker,

3 Cranch 357 (1806) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Owen v. United States,

851 F.2d 1404 (Fed. Cir. 1988) . . . . . . . . . . . . . . . 13, 14

Palm Beach County v. Tessler,

538 So. 2d 846 (Fla. 1989) . . . . . . . . . . . . . . . . . . . . . . 19

Pumpelly v. Green Bay Co.,

13 Wall. 166 (1871) . . . . . . . . . . . . . . . . . . . . . . 11, 16, 21

Richard v. United States,

282 F.2d 901 (Ct. Cl. 1960) . . . . . . . . . . . . . . . . . . 14, 15

Ridge Line, Inc. v. United States,

346 F.3d 1346 (Fed. Cir. 2003) . . . . . . . . . . . . . . . . . . 15

Robinson v. City of Ashdown,

783 S.W.2d 53 (Ark. 1990) . . . . . . . . . . . . . . . . . . . . . 20

St. Bernard Parish Government v.

United States,

121 Fed. Cl. 687 (2015), rev’d, 887 F.3d 1354

(Fed. Cir. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . passim

v

Cited Authorities

Page

St. Bernard Parish Government v.

United States,

126 Fed. Cl. 707 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . 5

Tri-State Materials Corp. v. United States,

550 F.2d 1 (Ct. Cl. 1977) . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Castleman,

572 U.S. 157 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Causby,

328 U.S. 256 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Clarke,

445 U.S. 253 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Cress,

243 U.S. 316 (1917) . . . . . . . . . . . . . . . . . . . . . . 11, 14, 16

United States v. Dickinson,

331 U.S. 745 (1947) . . . . . . . . . . . . . . . . . . . . . 11, 16, 21

United States v. Grizzard,

219 U.S. 180 (1911) . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16

United States v. Lynah,

188 U.S. 445 (1903) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Statutes and Other Authorities

28 U.S.C. 1295(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

vi

Cited Authorities

Page

Bryan A. Garner, et al., The Law of Judicial

Precedent (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

John Stuart Mill, On Liberty (1859) . . . . . . . . . . . . . . . 11

1

INTEREST OF AMICI CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation dedicated to advancing the principles

of individual liberty, free markets, and limited government.

Cato’s Robert A. Levy Center for Constitutional Studies

helps restore the principles of constitutional government

that are the foundation of liberty. To those ends, Cato

holds conferences and publishes books, studies, and the

annual Cato Supreme Court Review.

The National Federation of Independent Business

Small Business Legal Center (NFIB Legal Center) is a

nonprofit, public interest law firm established to provide

legal resources and be the voice for small businesses in

the nation’s courts through representation on issues of

public interest affecting small businesses. To fulfill its role

as the voice for small business, the NFIB Legal Center

frequently files amicus briefs in cases that will impact

small businesses.

Reason Foundation is a nonpartisan public policy

think tank, founded in 1978. Reason’s mission is to advance

a free society by developing and promoting libertarian

principles and policies, including free markets, individual

liberty, and the rule of law. Reason advances its mission

by publishing Reason magazine, online commentary, and

policy research reports. To further Reason’s commitment

to “Free Minds and Free Markets,” Reason files amicus

briefs on significant constitutional issues.

1. All parties’ counsel were timely informed of amici’s intent to

file this brief, and all parties have consented to this filing. No counsel

for a party has authored this brief in whole or in part, and no person

other than amici curiae, their members, and their counsel has made a

monetary contribution to the preparation or submission of this brief.

2

Southeastern Legal Foundation (SLF) is a national

nonprofit, public interest law firm and policy center that

advocates individual liberties, limited government, and

free enterprise. For 42 years, SLF has represented

property owners challenging unconstitutional takings in

state and federal courts.

The Property Rights Foundation of America, Inc.,

founded in 1994, is a national, non-profit educational

organization based in Stony Creek, New York, dedicated

to private property rights.

The National Association of Reversionary Property

Owners is a non-profit 501(c)(3) educational foundation

whose primary purpose is to assist property owners

in the education and defense of their property rights,

particularly their ownership of property subject to rightof-way easements.

Owners’ Counsel of America (OCA) is a network

of the nation’s most experienced eminent domain and

property rights attorneys. They have joined together

to advance, preserve, and defend the rights of private

property owners, and thereby further the cause of liberty.

OCA members and their firms have been counsel for a

party or amicus in many of the property cases this Court

has considered in the past forty years, and OCA members

have authored and edited treatises, books, and law review

articles on property law.

3

The National Association of Home Builders

(NAHB) is a federation of more than 700 state and local

associations. NAHB’s members frequently face state

action that eliminates the economically viable use of their

property, and it supports the application of the Fifth

Amendment’s Takings Clause to legislative, executive,

and judicial action.

Professor James W. Ely, Jr., is the Milton R.

Underwood Professor of Law Emeritus at Vanderbilt

University Law School. He is a renowned property rights

expert whose career accomplishments were recognized

with both the Brigham-Kanner Property Rights Prize

and the Owners’ Counsel of America Crystal Eagle Award

in 2006. Professor Ely is the co-author of the leading

treatise on the law of easements, The Law of Easements

and Licenses in Land (revised ed. 2018), and is the author

of The Guardian of Every Other Right: A Constitutional

History of Property Rights (3rd ed. 2008). Professor Ely

also served as an editor of both the second edition of

the Oxford Companion to the Supreme Court, and the

second edition of the Oxford Guide to Supreme Court

Decisions. This Court recently relied upon Professor Ely’s

scholarship in Marvin M. Brandt Rev. Trust v. United

States, 572 U.S. 93, 96 (2014).

Professor Shelley Ross Saxer is the Laure Sudreau

Endowed Chair at Pepperdine University School of Law,

where she teaches real property, land use, community

property, remedies, environmental law, and water law.

Professor Saxer has authored numerous scholarly articles

and books on property and takings law. See, e.g., David L.

Callies, Robert H. Freilich and Shelley Ross Saxer, Land

Use (American Casebook Series) (7th ed. 2017); Grant

4

Nelson, Dale Whitman, Colleen Medill, and Shelley Ross

Saxer, Contemporary Property (4th ed. 2013).

Professor Robert H. Thomas is the Joseph T. Waldo

Visiting Chair in Property Rights Law at William &

Mary Law School where he teaches eminent domain and

property rights. He has practiced eminent domain and

takings law for more than thirty years. Professor Thomas

was the Chair (2017-18) of the American Bar Association’s

Section on State & Local Government Law. He is the

Hawaii member of Owners’ Counsel of America and the

Managing Attorney for the Pacific Legal Foundation

Hawaii Center.

INTRODUCTION

The Fifth Amendment provides, “No person shall

*** be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for

public use, without just compensation.” The “Takings

Clause is ‘designed to bar Government from forcing some

people alone to bear public burdens which, in all fairness

and justice, should be borne by the public as a whole.’”

Arkansas Game & Fish Comm’n v. United States, 568

U.S. 23, 31 (2012) (quoting Armstrong v. United States,

364 U.S. 40, 49 (1960)).

The U.S. Army Corps of Engineers (Corps) built

a navigational canal that predictably and foreseeably

flooded private property in St. Bernard Parish and New

Orleans, Louisiana. The owners sought compensation

for the value of the property the government flooded.

The matter was extensively litigated in the U.S. District

Court for the Eastern District of Louisiana, adjudicating

5

the government’s tort liability, and the U.S. Court of

Federal Claims (CFC), adjudicating the government’s

liability under the Takings Clause. See In re Katrina

Canal Breaches Consolidated Litigation, 577 F. Supp.2d

802 (E.D. La. 2008) (Robinson I); In re Katrina Canal

Breaches Consolidated Litigation, 647 F. Supp.2d 644

(E.D. La. 2009) (Robinson II), aff’d in part, rev’d in part,

696 F.3d 436 (5th Cir. 2012) (Robinson III); St. Bernard

Parish Government v. United States, 121 Fed. Cl. 687

(2015) (App.28a) (St. Bernard Parish I), rev’d 887 F.3d

1354 (Fed. Cir. 2018) (App.1a) (St. Bernard Parish III).

See also St. Bernard Parish Government v. United States,

126 Fed. Cl. 707 (2016) (St. Bernard Parish II) (decision

regarding damages). The decisions of the district court

and CFC were reviewed by the Fifth Circuit and the

Federal Circuit, respectively.

The federal district court found “the callous and/or

myopic approach of the Corps to the obvious deleterious

nature of the MRGO2 is beyond understanding.” Robinson

II, 647 F. Supp.2d at 666. The CFC found, “[w]eighing all

the evidence in this case *** the Army Corps’ construction,

expansions, operation, and failure to maintain the MR-GO

caused subsequent storm surge that was exacerbated by

a ‘funnel effect’ during Hurricane Katrina *** causing

flooding on Plaintiffs’ properties that effected a temporary

taking ***.” St. Bernard Parish I, 121 Fed. Cl. at 746

(App.176a).

A panel of the Federal Circuit overturned the CFC’s

legal conclusions and excused the federal government from

its constitutional obligation to compensate these owners.

2. Mississippi River-Gulf Outlet, also abbreviated as MR-GO.

6

The Federal Circuit did so because it believed “[t]akings

liability must be premised on affirmative government

acts. The failure of the government to properly maintain

the MRGO channel or to modify the channel cannot be

the basis of takings liability.” St. Bernard Parish III, 887

F.3d at 1362 (App.13a).

This Court should grant the petition for certiorari

and reverse the Federal Circuit’s decision because the

Federal Circuit’s decision is contrary to this Court’s

Takings Clause jurisprudence, conflicts with the Federal

Circuit’s own precedent, conflicts with how state courts

apply the Takings Clause in similar cases, and upends

settled principles of property law.

STATEMENT OF THE CASE

Beginning in the 1950s, Congress directed the Corps

to construct the MRGO navigational canal. The Corps’

design, construction, and operation of MRGO destroyed

natural wetlands that had historically protected the St.

Bernard Polder from hurricane storm surge. MRGO

destroyed these protective wetlands by introducing

salt-water from the ocean. As MRGO’s banks eroded,

the channel became substantially wider, allowing more

water to pass through at higher velocities. The originallydesigned 650-foot-wide channel for ocean-going vessels

widened through unabated erosion to a half-mile-wide

channel by the 1980s. The Corps’ failure to maintain

MRGO further compounded the Corps’ flawed design and

construction of MRGO. MRGO created a funnel-effect,

focusing and intensifying a storm surge approaching the

St. Bernard Polder. The Corps’ design and construction

of MRGO and the Corps’ failure to maintain the MRGO

navigational canal was equivalent to loading a gun,

7

pointing it at the St. Bernard Polder, and waiting for a

hurricane to pull the trigger.

The CFC found the Corps knew as early as 1959

that armoring MRGO’s banks “was required to prevent

erosion of the MR-GO’s banks ***.” St. Bernard Parish

I, 121 Fed. Cl. at 721 (App.107a). The court further found

the Corps knew that this continued erosion would breach

the bank along Lake Borgne, which would expose the

“communities in which Plaintiffs’ properties are located

*** to direct hurricane attacks from Lake Borgne.” Id. at

722 (App.109a). In addition to deciding not to armor the

banks to prevent erosion, the Corps decided to acquire

easements over the eroded land by eminent domain. Id. at

721 (App.107a-108a). The court found that “[b]etween 1964

and 1996, 5,324 additional acres of marsh adjacent to the

MRGO were lost,” requiring the government to condemn

the eroded marshland. Id. (App.108a).

The Corps also refused to close MRGO despite

statements in its own reports that doing so would

“control[ ] bank erosion *** prevent[ ] saltwater intrusion,

and *** reduce the possibility of catastrophic damage

to urban areas by a hurricane surge coming up this

waterway.” St. Bernard Parish I, 121 Fed. Cl. at 729

(App.128a-129a) (emphasis added).

The CFC found the “flooding of Plaintiffs’ properties

that occurred during Hurricane Katrina and subsequent

hurricanes and severe storms was the direct result of the

Army Corps’ cumulative actions, omissions, and policies

regarding the MR-GO that occurred over an extended

period of time.” St. Bernard Parish I, 121 Fed. Cl. at 741

(App.160a) (emphasis added). After considering extensive

testimony and evidence presented in both the CFC and the

8

district court, the CFC concluded, “the Army Corps set

a chain of events into motion that substantially increased

storm surge and caused flooding during Hurricane

Katrina and subsequent hurricanes and severe storms.”

Id.

The Federal Circuit recognized that the CFC found

the catastrophic flooding of these landowners’ property

“occurred because MRGO caused breaches in the levees.”

St. Bernard Parish III, 887 F.3d at 1365-66 (App.22a).

Thus, had the Corps not constructed MRGO and had the

Corps not failed to maintain MRGO, the Chalmette levee

would have withstood Katrina’s “direct hurricane attacks

from Lake Borgne,” and these owners’ land would not

have flooded. St. Bernard Parish I, 121 Fed. Cl. at 722

(App.109a-110a).

The Federal Circuit did not disturb the extensive

factual findings and conclusions upon which the CFC and

district court premised their decisions. The CFC found:

Weighing all the evidence in this case, the court

has determined that Plaintiffs established that

the Army Corps’ construction, expansions,

operation, and failure to maintain the MRGO caused subsequent storm surge that

was exacerbated by a “funnel effect” during

Hurricane Katrina and subsequent hurricanes

and severe storms, causing flooding on Plaintiffs’

properties that effected a temporary taking

under the Fifth Amendment to the United

States Constitution.

St. Bernard Parish I,

121 Fed. Cl. at 746 (App.176a).

9

The CFC and district court found the Corps’ design,

construction, and operation of MRGO would substantially

increase the likelihood these owners’ properties in St.

Bernard Polder would flood. See St. Bernard Parish I, 121

Fed. Cl. at 720-38 (App.105a-152a) (discussing the history

of MRGO since 1958, including the repeated studies and

warnings that the construction and operation of MRGO

significantly increased the risk that privately-owned land

would flood).

The district court similarly found:

[I]t is clear from the testimony and documentary

evidence that the Corps knew at least from the

early 1970’s that the MRGO was endangering

the Chalmette Unit Reach 2 Levee. It knew that

a primary source of the devastating shoaling

was as a result of the wave wash that occurred

with each ship that navigated the channel. ***

As to the north shore, the callous and/or myopic

approach of the Corps to the obvious deleterious

nature of the MRGO is beyond understanding.

Robinson II,

647 F. Supp.2d at 665-66.

The Fifth Circuit rejected the government’s argument

that the United States was immune from liability because

the construction and operation of MRGO was a “floodcontrol” project. The MRGO navigation canal was not

a flood-control project. The Fifth Circuit held, “the

negligently maintained MRGO acted upon the levees in

a way that caused them to be breached during Hurricane

Katrina, and, because MRGO was not a flood-control

project and was separate from the [Lake Pontchartrain

10

and Vicinity Hurricane Protection Plan], no immunity

should attach under Section 702c.” Robinson III, 673 F.3d

at 446.

SUMMARY OF ARGUMENT

This Court should grant the landowners’ petition for

certiorari because Judge Dyk’s opinion for the Federal

Circuit panel adopted two novel exclusionary rules that

are contrary to this Court’s Takings Clause jurisprudence.

See Arkansas Game, 568 U.S. at 34 (“No decision of this

Court authorizes a blanket temporary-flooding exception

to our Takings Clause jurisprudence, and we decline

to create such an exception in this case.”). Judge Dyk’s

opinion improperly side-stepped this Court’s unanimous

holding in Arkansas Game.

The Federal Circuit’s action versus inaction

dichotomy is also contrary to the Federal Circuit’s own

precedent and is contrary to how state courts apply the

Takings Clause in similar flooding cases.

This Court should also grant certiorari because

the Federal Circuit is a court of national jurisdiction

hearing every appeal of every inverse condemnation

claim against the United States. The Federal Circuit’s

decision undermines existing property rights and crafts

a new and novel paradigm (the supposed action versus

inaction analysis) and unsettles established Takings

Clause jurisprudence nationally.

11

ARGUMENT

A person may cause evil to others not only by his

actions but by his inaction, and in either case he is

justly accountable to them for the injury.

John Stuart Mill,

On Liberty (1859), p. 17

I.

The Federal Circuit adopted a paradigm contrary

to this Court’s Takings Clause jurisprudence.

This Court has long-held government-induced flooding

of private property, even if seasonal or temporary in

duration, is a compensable taking for which the Fifth

Amendment compels the government to justly compensate

the landowner. See, e.g., Pumpelly v. Green Bay Co.,

13 Wall. 166, 181 (1871) (“where real estate is actually

invaded by superinduced additions of water *** so as to

effectually destroy or impair its usefulness, it is a taking);

United States v. Lynah, 188 U.S. 445, 470 (1903) (“where

the government by the construction of a dam or other

public works so floods lands belonging to an individual

as to substantially destroy their value there is a taking

within the scope of the 5th Amendment”); United States

v. Grizzard, 219 U.S. 180, 184 (1911) (“If, as the court

below found, the flooding and taking of a part of the

plaintiff’s farm has depreciated the usefulness and value

of the remainder, the owner is not justly compensated by

paying for only that actually appropriated, and leaving

him uncompensated for the depreciation over benefits to

that which remains.”); United States v. Cress, 243 U.S.

316, 328 (1917) (quoting and following Lynah, 188 U.S.

at 470); United States v. Dickinson, 331 U.S. 745, 750

(1947) (“When it takes property by flooding, it takes the

12

land which it permanently floods as well as that which

inevitably washes away as a result of that flooding.”);

Arkansas Game, 568 U.S. at 27 (“recurrent floodings,

even if of finite duration, are not categorically exempt

from Takings Clause liability”).

The Federal Circuit, however, excused the government

from its obligation to justly compensate these St. Bernard

Parish and New Orleans landowners because it wrongly

believed that the government’s lack of “direct action”

somehow relieved the government of its constitutional

obligation to compensate these landowners. The Federal

Circuit’s action versus inaction dichotomy is unworkable,

is contrary to established Takings Clause jurisprudence,

and is flatly contrary to this Court’s recent decision in

Arkansas Game.

Judge Dyk’s opinion attempts to reformulate a

blanket exclusionary rule for takings liability this Court

unanimously rejected in Arkansas Game. 568 U.S. at

37 (“Flooding cases, like other takings cases, should be

assessed with reference to the ‘particular circumstances

of each case,’ and not by resorting to blanket exclusionary

rules.”).

Judge Dyk’s opinion reiterates the reasoning this

Court unanimously rejected in Arkansas Game. In the

Federal Circuit’s Arkansas Game decision, Judge Dyk

wrote, “[h]owever, cases involving flooding and flow-age

easements are different. *** An injury that is only ‘in

its nature indirect and consequential,’ i.e. a tort, cannot

be a taking.” Arkansas Game & Fish Comm’n v. United

States, 637 F.3d 1366, 1374 (Fed. Cir. 2011), rev’d 568 U.S.

23 (2012) (emphasis added).

13

This Court categorically rejected Judge Dyk’s

proposition in Arkansas Game and held, “[n]o decision

of this Court authorizes a blanket temporary-flooding

exception to our Takings Clause jurisprudence, and we

decline to create such an exception in this case.” Arkansas

Game, 568 U.S. at 34.

Judge Dyk’s supposition that “inaction” absolves

the government of responsibility recalls this Court’s

repudiation of the criminal’s argument that he cannot be

found guilty even though he loaded the gun, pointed it at

his victim, and pulled the trigger because “pulling the

trigger on a gun is not a use of force because it is the bullet,

not the trigger, that actually strikes the victim.” United

States v. Castleman, 572 U.S. 157, 171 (2014) (internal

quotation omitted).

The panel’s decision also conflicts with the Federal

Circuit’s own precedent. In Owen v. United States, 851

F.2d 1404, 1405 (Fed. Cir. 1988) (en banc), the Federal

Circuit reversed the dismissal of a landowner’s inverse

condemnation claim where the Corps dredged a river in

order to improve navigation. The changed shape of the

river caused the adjacent land to erode and resulted in

the owner’s home toppling into the river. The Corps did

not remove the soil under the owner’s home, nor did it

intend to do so, and in fact, there was no “allegation that

the Corps itself invaded” the owner’s land. Id. at 1407.

Rather, “erosion resulting from the increased velocity”

of the river eventually removed the soil. Id.

The Federal Circuit in Owen held the Corps’ “actual

construction equipment or work need not directly encroach

upon the property in question before a taking by the

government can be deemed to have occurred.” 851 F.2d at

1411-12 (citing United States v. Causby, 328 U.S. 256 (1946)).

14

The Federal Circuit “reject[ed] the offered view that no

compensation can ever be owed for the consequential effects

of construction activities to further navigation ***.” Id. at

1412. The court reaffirmed its past precedent, explaining,

“it is not the location of the cause of the damage that is

relevant, but the location and permanence of the effect of the

government action causing the damage that is the proper

focus of the taking analysis.” Id. (citing Tri-State Materials

Corp. v. United States, 550 F.2d 1, 4 (Ct. Cl. 1977), Cress,

243 U.S. at 316, and Goose Creek Hunting Club, Inc. v.

United States, 518 F.2d 579, 583 (Ct. Cl. 1975)) (emphasis

in original).

In Richard v. United States, the Federal Circuit’s

predecessor (the U.S. Court of Claims) held the federal

government liable for a taking when water from a government

irrigation and flood-control canal raised the groundwater

level and destroyed an adjoining landowner’s orange grove.

282 F.2d 901, 904 (Ct. Cl. 1960). The court held:

[I]t is not necessa r y t o show that the

[government] intended to take plaintiff’s land;

all that plaintiff need show is that the taking

of its land was the natural and probable

consequence of the acts of the [government].

It is not even necessary for plaintiff to show

that [the government] was aware of the taking

of an interest in its property would naturally

result from its acts. It is only necessary to show

that this was in fact the natural and probable

consequence of them.

Id.3

3. Citing Cotton Land Co. v. United States, 109 Ct. Cl. 816,

831-32 (1948) (emphasis added).

15

The Court of Claims found the government responsible

for a taking when the flooding (or raising the water table)

was “the natural and probable consequence[ ]” of the

government’s action. Richard, 282 F.2d at 904. “We must

hold that plaintiffs’ injury was the natural consequences

of defendant’s act.” Id. See also Barnes v. United States,

538 F.2d 865, 871-72 (Ct. Cl. 1976) (owner “need not allege

or prove that [the government] specifically intended to

take property. There need be only a governmental act, the

natural and probable consequences of which effect such an

enduring invasion of plaintiffs’ property as to satisfy all

other elements of a compensable taking.”) (action involving

permanent, intermittent flooding where Corps foresaw

that river delta growth would be a factor to consider in

evaluating the impact of water release from dams).

So too in Ridge Line, Inc. v. United States, 346 F.3d

1346 (Fed. Cir. 2003), which this Court favorably cited

in Arkansas Game, 568 U.S. at 39. In Ridge Line, the

government built a facility that increased stormwater

runoff onto adjoining land, and the government failed to

build stormwater retention basins and dams. 346 F.3d at

1351. The Federal Circuit remanded this case to the CFC

to consider whether the government’s inaction (i.e., the

government’s failure to build these mitigating structures)

deprived the adjoining landowners of a “cognizable

property interest.” Id. at 1358.

16

II. The Federal Circuit’s action versus inaction

dichotomy is contrary to established Takings

Clause jurisprudence as followed by state courts.

In Pumpelly, Grizzard, Cress, Dickinson, Arkansas

Game, 4 and other cases, this Court has held the

government’s flooding of private property is a compensable

taking for which the Fifth Amendment compels the

government to justly compensate the landowner. Several

state courts hold that when the government floods private

property through inaction, it is a taking for which the

Fifth Amendment compels the government to compensate

the landowner. This is so even when the government

inadvertently floods an owner’s land. Decisions by state

courts in Maryland, California, Florida, New Mexico, and

Arkansas demonstrate this point. 5

In Litz v. Maryland Department of the Environment,

131 A.3d 923, 931 (Md. 2016), the Maryland Court of

Appeals held an owner may allege inverse condemnation

based upon the government’s “failure to act, in the face

of an affirmative duty to act.”

Gail Litz owned a campground recreational lake.

Litz lost her campground business and her property

when sewage polluted the lake. Id. at 926. The Maryland

Court of Appeals held the government entities (Maryland

and the town of Goldsboro) responsible for taking Litz’s

land because the city and state knew about the sewage

overflow but did nothing to avert the contamination. Id.

The government argued it was absolved of liability because

4. See, supra, pp. 11-12.

5. We could add others, but space prohibits us from doing so.

17

the sewage was the result of acts by third parties and not

direct action by the government. Id. at 927. The Maryland

Court of Appeals rejected this argument.

Noting that this taking didn’t “fit[ ] neatly within

conventional thinking about inverse condemnation”

because Litz’s “allegations focus predominately on the

inaction of [the government], rather than any affirmative

action by [the government] parties,” and that Maryland

law was silent on the question, the court looked to other

states. 6 Id. at 931. The Maryland Court of Appeals

followed Florida and California and expressly adopted the

reasoning of the California Court of Appeals in Arreola

v. County of Monterey, 122 Cal. Rptr.2d 38 (Cal. Ct. App.

2002), and the Florida Court of Appeals in Jordan v. St.

Johns County, 63 So.3d 835 (Fla. Ct. App. 2011).

In Arreola, the California court held that state and

local governments must pay an owner when the government

floods the owner’s property. 122 Cal. Rptr.2d at 44-45.

In 1949, the Army Corps of Engineers constructed the

Pajaro River Levee Project under the federal Flood

Control Act of 1944. Id. at 45-56. The project built levees

along and channeled the Pajaro River. Id. The Corps then

stepped out of the project and turned operation over to

the California local governments. Id. at 46.

6. Maryland’s takings clause “has been determined to ‘have

the same meaning and effect in reference to an exaction of property,

and that the decisions of the Supreme Court on the Fourteenth

Amendment are practically direct authorities.’” Litz, 131 A.3d at

930 (quoting Bureau of Mines of Maryland v. George’s Creek Coal

& Land Co., 321 A.2d 748, 755 (Md. 1974)).

18

The Corps gave the California local government

entities a manual to manage the project. Id. The Corps’

manual directed the river channel to be cleared of

vegetation and shoals. Arreola, 122 Cal. Rptr.2d at 46.

For twenty-three years, the state and local governments

maintained the channel as directed. But, in 1972, the

California Fish and Game Department halted further

clearing of the channel to protect animal habitats. Id.

Sediment and vegetation began clogging the channel.

Id. at 46-47. California’s failure to maintain the channel

caused stormwater to overtop the levees and flood the

adjoining owners’ land. Id. at 49.

Arreola held that f looding landowners’ private

property is a compensable taking when “the injury is a

result of dangers inherent in the construction of the public

improvement as distinguished from dangers arising from

the negligent operation of the improvement.” 122 Cal.

Rptr.2d at 53 (quoting House v. Los Angeles County Flood

Control District, 153 P.2d 950, 956 (Cal. 1944) (Traynor,

J., concurring)).7

In Arreola, the court held that because the counties

“made the deliberate calculated decision to proceed

7. In House, the California Supreme Court held the government

must compensate owners when it “removed a safe and secure

protection to [House’s] land immediately adjacent thereto and

substituted therefor an unsafe, careless and negligently planned

bank or wall, resulting in the overflow, inundating and washing away

of her property ***.” 153 P.2d at 953. See also Butte Fire Cases, 2018

WL 3371780, *2 (Cal. Super. Ct. April 26, 2018) (holding inverse

condemnation liability applies when a utility failed to follow fire

safety management practices in constructing and maintaining its

power lines, resulting in wildfire).

19

with a course of conduct, in spite of a known risk, just

compensation will be owed.” 122 Cal. Rptr.2d at 53

(emphasis added). The court concluded, “in order to

prove the type of governmental conduct that will support

liability in inverse condemnation it is enough to show that

the [government] entity was aware of the risk posed by

its public improvement and deliberately chose a course of

action – or inaction – in the face of that known risk.” 122

Cal. Rptr.2d at 55 (emphasis added).

Florida, likewise, holds the government is obligated to

compensate landowners for taking private property when

either inaction or unintended consequences of government

action cause the owner to lose his property.

In Jordan v. St. Johns County, 63 So.3d 835 (Fla.

Ct. App. 2011), private landowners lived along a county

highway. The county no longer maintained the road,

and the owners lost access to their property when the

road became impassible. Id. at 839. The court held

“governmental inaction – [failure to maintain the road]

in the face of an affirmative duty to act – can support a

claim for inverse condemnation.” Jordan, 63 So.3d at 839

(citing Palm Beach County v. Tessler, 538 So.2d 846, 849

(Fla. 1989)).

New Mexico similarly holds the government must

compensate an owner when “the risk of damage to the

owner’s property is actually foreseen by the governmental

actor, or in which it is so obvious that its incurrence

amounts to the deliberate infliction of harm for the

purpose of carrying out the governmental project.”

Electro-Jet Tool & Manufacturing Co. v. Albuquerque,

845 P.2d 770, 777 (N.M. 1992).

20

In Electro-Jet, the City of Albuquerque built and

improperly maintained a stormwater-drainage system

adjacent to Electro-Jet’s buildings. Id. at 771. The city’s

failure to maintain its drainage ditches caused ElectroJet’s buildings to settle. Id. Because Electro-Jet failed to

“allege any action by the City amounting to a deliberate

*** damaging of its property by the City,” the court

dismissed Electro-Jet’s action. Id. at 773 (emphasis

added). But, importantly, the court held that if ElectroJet were to allege the city “proceeded to permit water

to pond in the drainage ditches” and was aware that the

resulting seepage of the water into the soil could damage

Electro-Jet’s buildings, the city would be liable for a

taking. Id. at 779.

The Arkansas Supreme Court held the government

must compensate an owner when an owner’s home was

devalued by sewage backing-up into the home due to

the city’s failure to properly operate its sewage pumps.

Robinson v. City of Ashdown, 783 S.W.2d 53, 54 (Ark.

1990). The city argued it only needed to compensate the

owner when the government “purposely engaged in an

endeavor that caused damage to various landowners.”

Id. at 56. The government argued it needn’t compensate

owners when the government acted “indirectly” or

through third parties.

In Robinson, the court held that, when the government

“acts in a manner which substantially diminishes the value

of a landowner’s land” – the action here being the city’s

failure to properly pump sewage – “and its actions are

shown to be intentional, it cannot escape its constitutional

obligation to compensate for a taking of property on the

basis of its immunity from tort action.” 783 S.W.2d at

56-57.

21

III. The Federal Circuit has national jurisdiction over

every inverse condemnation action against the

United States.

The Federal Circuit is a court of national jurisdiction

hearing every appeal of every inverse condemnation

taking case against the United States. 8 See 28 U.S.C.

1295(a).

When the United States floods an owner’s property,

the Fifth Amendment compels the Government to pay the

owner just compensation. This has been settled law since

before 1872. See Pumpelly, 13 Wall. at 181, and collected

cases, supra, pp. 11-12.

8. As this Court has explained, “[t]here are important legal

and practical differences between an inverse condemnation suit

and a condemnation proceeding.” United States v. Clarke, 445 U.S.

253, 255 (1980). “[A] ‘condemnation’ proceeding is *** an action

brought by a condemning authority *** in the exercise of its power

of eminent domain.” Id. (emphasis in original). Inverse condemnation

“shifts to the landowner the burden to discover the encroachment

and to take affirmative action to recover just compensation.” Id.

See also First English Evangelical Lutheran Church of Glendale

v. Los Angeles County, 482 U.S. 304, 316 (1987) (“While the typical

taking occurs when the government acts to condemn property in

the exercise of its power of eminent domain, the entire doctrine of

inverse condemnation is predicated on the proposition that a taking

may occur without such formal proceedings.”); Dickinson, 331 U.S.

at 747-48 (“The Government could, of course, have taken appropriate

proceedings, to condemn *** both land and flowage easements. ***

The Government chose not to do so. It left the taking to physical

events, thereby putting on the owner the onus ***.”). Here, the

government has denied liability for the taking and shifted to these

owners the burden of affirmatively proving the government’s liability

and the amount of compensation they are owed.

22

The Federal Circuit’s decision undermines this

constitutional guarantee. And, because the Federal

Circuit has exclusive national jurisdiction of every inverse

condemnation action against the United States, there is

heightened need for this Court to review Federal Circuit

decisions when the Federal Circuit announces a novel rule

of national sweep.

The Federal Circuit’s action versus inaction

dichotomy is a new lens through which to view private

property rights and the Takings Clause. Judge Dyk’s

opinion undermines existing property rights and attempts

to craft a novel argument by which the government may

escape its constitutional obligation to justly compensate

owners when it takes their property. This unsettles

existing property interests and expectations.

“A venerable legal principle stresses the importance

of reliance interests when dealing with property rights.”

Bryan A. Garner, et al., The Law of Judicial Precedent

(2016), p. 421. Garner, et al., point out that in Marine Ins.

Co. of Alexandria v. Tucker, 3 Cranch 357, 388 (1806),

this Court stated, “in questions which respect the rights

of property, it is better to adhere to principles once fixed

*** than to unsettle the law in order to render it more

consistent with the dictates of sound reason.”9 What makes

the Federal Circuit’s decision so unsettling is that it is not

even consistent with sound reason.

9. See also Leo Sheep Co. v. United States, 440 U.S. 668, 68788 (1979) (“This Court has traditionally recognized the special need

for certainty and predictability where land titles are concerned,

and we are unwilling to upset settled expectations to accommodate

some ill-defined power to construct public thoroughfares without

compensation.”).

23

CONCLUSION

This Court should grant these Louisiana landowners’

petition for certiorari because the Federal Circuit’s

decision is contrary to this Court’s Takings Clause

jurisprudence.

Even more important than the errors in the Federal

Circuit’s flawed legal analysis and its failure to heed

this Court’s decisions is the mischief and injustice the

Federal Circuit’s decision will wreak upon not only these

Louisiana landowners, but also upon all owners whose

property is taken when the federal government floods

private property.

Moreover, establishing and affirming this Court’s

jurisprudence on Fifth Amendment takings is necessary

to guide lower courts in numerous current and future

flooding cases. See, e.g., In re Addicks & Barker FloodControl Reservoirs;10 Ideker Farms, Inc. v. United States;11

Big Oak Farms, Inc. v. United States.12 Providing the

lower courts and litigants clear direction is essential

to justly and efficiently resolve all owners’ claims. The

Federal Circuit with its novel and amorphous action

versus inaction dichotomy has greatly muddied the waters

in flooding cases.

10. No. 1:17CV3000 (Court of Federal Claims Hurricane

Harvey litigation).

11. No. 1:14CV183 (Court of Federal Claims six-state

Missouri River flooding litigation) (case stayed pending this Court’s

consideration of the St. Bernard Parish petition for certiorari).

12. No. 1:11CV275 (Court of Federal Claims Mississippi River

flooding litigation).

24

Respectfully submitted,

Ilya Shapiro

Cato Institute

1000 Massachusetts

Avenue, NW

Washington, DC 20001

(202) 842-0200

Counsel for Cato Institute

Luke Wake

NFIB Small Business

Legal Center

921 11th Street, Suite 400

Sacramento, CA 95814

(916) 448-9904

Counsel for NFIB Legal

Center

Kimberly S. Hermann

Southeastern Legal

Foundation

560 West Crossville Road,

Suite 104

Roswell, GA 30075

(770) 977-2131

Counsel for Southeastern

Legal Foundation

Mark F. (Thor) Hearne, II

Counsel of Record

Stephen S. Davis

Meghan S. Largent

Lindsay S.C. Brinton

A bram J. Pafford

A rent Fox, LLP

1717 K Street, NW

Washington, DC 20006

(202) 857-6000

thornet@ix.netcom.com

Counsel for Amici Curiae

Devala A. Janardan

National A ssociation of

Home Builders

1201 15th Street, NW

Washington, DC 20005

(202) 266-8200

Counsel for National Association

of Home Builders

Manuel S. Klausner

Law Offices of

Manuel S. Klausner

One Bunker Hill Building

601 West Fifth Street

Los Angeles, CA 90071

(213) 617-0414

Counsel for Reason Foundation

25

Shelley Ross Saxer

Laure Sudreau Endowed Chair

Pepperdine University

School of Law

24255 Pacific Coast Highway

Malibu, CA 90263

(310) 506-4657