Petition — Bartz v. United States

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Supreme Court, U.S,

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RODAK, JR, CLERK |

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No.

IN THE SUPREME COURT

OF THE UNITED STATES OF AMERICA

October, 1980, term

FRED W. BARTZ, et al.

v. THE UNITED STATES

ON PETITION FOR WRIT OF CERTIORARI

from the UNITED STATES COURT OF CLAIMS

PETITION FOR WRIT OF CERTIORARI

John T. Nokan, attorney of record, for

plaintiffs. Lucas, Nolan, Bohanan & Moen,

405 ISB & T Building, Iowa City, Iowa

52240, (319) 351-0221. Thomas E. Perry,

Edwin A. Hickhin, and Elizabeth A. Nolan,

of counsel.

Hubert M. Crean, with whom was Assistant

Attorney Generak James W. Moorman, for

Defendant. James E. Brookshire, of counsel.

QUESTIONS PRESENTED FOR REVIEW

as Whether the Ruling of the

Court of Claims (Exhibits 1 and 2) is

contrary to the record evidence of the

trial.

ya Whether it was error for the

trial judge to adopt the defendant's

computer simulation which was based upon

"input" to the computer program that was

totally unsupported by, and in fact,

totally contrary to all of the record

evidence on the crucial factor of the

case; i.e., the effect of regulated

river bankfull flow upon subsurface farm

field drainage (freeboard), and water

stagnation in the saturated farm field

subsurface.

x Whether the arbitrary ob-

sequience by the Court to the government's

unwarranted computer simulation denied

2

Plaintiffs their due process right to a

fair trial based upon the evidence.

4. Whether the Court improperly

ignored the testimony of the Cedar River

farmers that there was no substantial

crop damage along the sister river

during the same years involved.

Ss Whether the Court improperly

refused to remand the companion claims

based on trespass to the U.S. District

Court without ruling on the merits.

6. Whether it was error for the

Court to disregard the Iowa Constitu-

tional (Art 1 89) prohibition against

consideration of the "benefits" con-

ferred by the dam.

qs Whether the Court erred in

denying plaintiffs' claim where such denial

was in direct conflict with the prior

decision of the same Court in Tri-State

Materials Corp. v. U.S., 213 -Ct.Cl.1, 550

F.2d 1 (1977).

PARTIES TO PROCEEDING

Mr. C. Keith Abbott

M. Mary Baker

Mr. Clarence Keltner

Mr. Clarence Bausch

Mr. Darrell Ross Bell

Mr. Donald W. Camp

Mr. John A. Canott

Central Sand & Gravel Company

c/o Mr. Robert G. Barker

Mr. Donald D. Cerny

Mr. Donald J. Clausen

Mr. Cleo Dodson

Mr. Kenneth Dodson

Mr. Homer E. Eden

M. Martha L. Hawk

M. Mary E. Boysen

Mr. Howard D. Fountain

Mr. Wilbert Frantz

Mr. David A. Frieden

Mr. Sumner Hayes

M. Bessie Heck

Mr. Fred Humiston

Mr. David R. Ipsen

M. Agnes S. Isett

Mr. Job Keltner

c/o Belle Slough Corporation

Attorney Ralph Neuzil

Mr. Kenneth Kucera

Mr. Charles W. Laughlin

Mr. Robert M. Marshek

Mr. Glen J. McCulley

Rohrbacker Estate

c/o Jim Gordon

Mr. Donald B. Schott

Mr. Albert Schweitzer

Mr. James Seiler

Mr. Frank Skala

Mr. Paul Snyder

Mrs. Paul Snyder

Mr. Michael Stoneking

Mr. Cecil Strabala

Mr. Omer Strabala

Mr. Vernon J. Swain

Mr. Shafter M. Walker

Mr. Fred Thomas

Mrs. Fred Thomas

Mr. John Wendel Thomas

M. Martha C. Thye

Mr. Henry V. Thye

Mr. Richard E. Thye

Triple K. Corporation

c/o Mr. Job Keltner, Jr.

Mr. Robert E. Vogel

Mr. Mearle Walker

First National Bank Myron Walker Trust

c/o Mr. Vince Maurer

Mr. Lewis J. Westfall

M. Pauline R. Westfall

Mr. Robert Women

Mr. Robert E. Zeithamel

Mr. George B. Zimmerman

Mr. D.C. Nolan

Mr. Fred W. Bartz

M. Loanna Bloethe

Mr. Jeffrey Denzler

Mr. Roy A. Denzler

Mr. Willard J. Dickei

Mr. James E. Foley

Mr. Howard Frimml

Mr. Maynard C. Ages

Mr. Rick Gates

Mr. Marvin F. Hale

Mr. Merle A. Head

Mr. George E. Kinzenbaw

Mrs. Kalmer M. Kinzenbaw

Mr. Louis Knapp, Sr.

Mr. Willis Lohrer

Mr. George Miller

Mr. Leo Possehl

Mr. Edward Shima

Mrs. May Slaymaker

Mr. John M. Vogt

Nolan-Zastrow

6

TABLE OF CONTENTS

and

TABLE OF AUTHORITIES

Table of Contents

Page

QUESTIONS PRESENTED FOR REVIEW. . Z 1

Peamtiee 20 PROCEEDING. . 1... + se 3

he A ee 8 ie oe ee! wee 6

ae We MUSE MOMA TALES 6.0. 08 6 a 7

Reepeerwe TO OPINION . 1. .« 6 0 ee 8

JURISDICTIONAL STATEMENT ...... 8

(i) Date of Judgment Reviewed. 8

(ii) Date of Order Denying

NEN eS ele al ae ee 8

(iii) Statutory Jurisdiction aa 9

aR RIV OWS. 8 se ee tk et

Grmamemme OF THE CASE... sie « « 3 e 10

JURISDICTION IN COURT OF CLAIMS. . . 12

Ee a ok Mage og a ge gg ge) (LD

Dae eee Rs 6 st ee Be kee

(i) Opinion-Court of Claims. . 1

(Trial Opinion Adopted)

7

(li) Opinion-Trial Judge .......

(See [i] supra)

(iii) Order on PENOELING. 6 aS

(iv) Excerpt of Findings of Fact...

(v) Transcript of Testimony... .

(vi) Explanation of "Freeboard". . ms

Table of Authorities

Cases

Tri-State Materials Corporation v. ..

U.S.-, Ct. Cl. 1, 550 F.2d 1 (1977)

Statutes/Constitutional Provisions

Sth Amendment, U.S. Constitution. . . 2,9,19

Act I, 818, Iowa Constitution... :

REFERENCE TO OPINION

The Plaintiffs' claim was dis-

allowed by opinion (Exhibit 1, Of the U.S.

Court of Claims, Bartz, et. al. vs. The

United States of America, Nos. 170-75, et.

al., and Order denying Plaintiffs' Motion

for Rehearing to Alter the Findings and

Judgment and for a New Trial, dated

October 3, 1980. (Exhibit 2)

JURISDICTION OF THE COURT

Plaintiffs' claims are for compen-

sation pursuant to the United States

Constitution, Article Five, for taking of

riparian farmland by the U.S. Corps of

Engineers.

4

i. Date of the Judgment and Decree

and time of its entry is July 16, 1980.

(Exhibit 1)

i2, Date of any Order respecting a

9

rehearing is October 3, 1980. (Exhibit 2)

$5344 Statutory provision believed to

confer jurisdiction on the Supreme Court

to review the judgment or decree is 28

U.S.C. 81255(1).

STATUTES INVOLVED

No person shall be held to answer for

a capital, or otherwise infamous crime,

unless upon presentment or indictment of a

Grand Jury, except in cases arising in the

land or naval forces, or in the Militia,

when in actual service in time of war or

public danger; nor shall any person be

subject for the same offense to be twice

put in jeopardy of life or limb; nor shall

be compelied in any criminal case to be a

witness against himself, nor be deprived of

life, liberty or property, without due

process of law; nor shall private property

be taken for public use, without just

compensation

Amendment Five, Constitution of the

United States of America.

Sec. 18 Private property shall not be

taken for public use without just compen-

Sation first being made, or secured to be

made to the owner thereof, as soon as

damages shall be assessed by a jury, who

shall not take into consideration any ad-

vantages that may result to said owner on

account of the improvement for which it is

taken.

wha Art. 1, 818, Constitution of the

State of Iowa.

STATEMENT OF THE CASE

Plaintiffs owned farm fields adjacent

to the Iowa River. The U.S. Corps of

Engineers built and have since operated the

Coralville Reservoir in order to reduce

flood crests, and thereby regulate the

11

river flow at a lower rate (than flood-

crest) over a longer period of time. [In so

doing, the river flow has been historically

maintained (regulated) at bankful levels

and artifically delayed and prolonged (with

serious harm to crops) during the planting

and growing seasons.

The high river flow at bankful levels

blocks the natural drainage of the farm

‘ 1

fields, saturates the “freeboard,”

suffocates or drowns the crops, prevents

normal planting and cultivation, and has

caused extensive crop damage and loss.

The Government used the nearby Cedar

River Valley as a comparable river for

weather effect on river flow. On rebuttal,

Plaintiffs showed that similarly-situated

farmers had no U.S. Corps of Engineer reser-

voir, no river regulation, and significantly

no crop loss under natural conditions, all

of which was

sce Exhibit 5

i

12

ignored by the Court.

The Corps has blocked farm field

drainage, caused substantial damages,

and imposed an artificial flowage easement

on Plaintiffs' farm fields.

Plaintiffs filed their claim in the

U.S. Court of Claims with jurisdiction

based under 28 U.S.C. 81491 for a 5th

Amendment taking.

JURISDICTION IN COURT OF CLAIMS *,

Jurisdiction in the Court of Claims

was invoked and based upon federal

question jurisdiction (Fifth Amendment

taking) pursuant to 28 U.S.C. $1491.

ARGUMENT FOR ALLOWANCE OF WRIT

The damage to the Plaintiffs by

operation of the Coralville Reservoir is

manifest. The cornerstone of the proof

acduced by the Government; i.e., its

°°,

13

computer simulation, is not just un-

supported, it is contrary to the record

evidence.

The Government convinced the Court

that the farmers' testimony established

that farm fields dried out within ten

days after the water was regulated off

the top or their fields and this informat-

ion served as the cornerstone of the

computer simulation relied upon by the

Court.

The record is clear that the farmers,

to a man, said no such thing. The

computer presumably did what it was

told, but that had no relation to the

facts in this case. The Government,

in effect, pulled a fast one.

In adopting the Government computer

simulation (including a dry "freeboard"

contrary to the evidence), the Court has

14

so far departed from the accepted and

usual course of judicial proceedings as

to call for exercise of the U.S. Supreme

Court's power of supervision (Title 28,

S.Ct. Rule 17),

Plaintiffs include in Exhibit 4

(attached) reference to the farm testimony

concerning the mythical ten-day dryout

of the freeboard, and Exhibit 5 (a

discussion of the term "freeboard" as

used in this case).

Respectfully submitted this \%

day of December, 1980.

LUCAS, NOLAN, BOHANAN & MOEN

405 Iowa State Bank Building

Iowa City, Iowa 52240

APPENDIX

Exhibit 1

IN THE UNITED STATES COURT OF CLAIMS

Nos. 170-75; 185-75; 213-75

217-75, 222-75, and 352-75

(Decided July 16, 1980)

FRED W. BARTZ, et al.*

v. THE UNITED S.ATES

John T. NoLan, attorney of record, for

Plaintiffs. Lucas, Nolan & Bohanan,

Thomas E. Perry, Edwin A. Hickhin and

Elizabeth A. Nolan, of counsel.

Hubert M. Crean, with whom was

Attorney Generak James W. Mooreman, for

defendant. James E. Brookshire, of

counsel.

Before Kashiwa, Kunzig and Bennet, Judges.

PER CURIAM: This case comes before the

court on plaintiffs’ exceptions to the

recommended decision of Trial Judge C.

Murray Bernhardt, filed August 10, 1979,

pursuant to Rule 134(h), and on plaintiffs’

*On April 14, 1979, 25 plaintiffs volun-

tarily dismissed their claims. One original

plaintiff was transferred to the district

court. Balmer, the original lead plaintiff,

was among those dismissed. The successor

and present lead plaintiff is Bartz.

2

motion filed April 21, 1980, for partial

remand, having been submitted to the court

on the briefs and oral argument of counsel.

Upon consideration thereof, since the

court agrees with the trial judge's recom-

mended decision, as hereinafter set forth**

it hereby denies plaintiffs' motion for

partial remand and affirms and adopts the

decision as the basis for its judgment

in this case. Accordingly, plaintiffs are

not entitled to recover, and the petitions

are dismissed.

OPINION OF TRIAL JUDGE

BERNHARDT, Triak Judge: Some 112 owners

of farms riparian to the Iowa River above

and below the Coralville Dam sue under 28

U.S.C. $1491 for the Fifth Amendment taking

**Although the court adopted the trial

judge's separate findings of fact and

appendix (A), which are set forth in his

report, they are not printed herein since

such facts as are necessary to the decision

are net contained in his opinion.

by inverse condemnation of portions of

their farms by means of recurring flood-

ing alleged to be due to the construc-

tion and operation of the dam. It is

concluded that they are not entitied to

recover.

Coralville Dam, a component of the

comprehensive flood control plan for the

Mississipii River Basin, was placed in

operation in September, 1958. It is

located at river mile 83.3 on the Iowa

River, about 5 miles above Iowa City,

Iowa. The dam controls an upstream

drainage area of 3,084 square miles. The

total drainage area of the Iowa River and

its major tributary below the dam, the

Cedar River, is about 12,640 square miles.

The plaintiffs fall into three groups.

First, those upstream from the Coralville

Reservoir, known as the “Marengo"

4

plaintiffs. Second, those between the

dam and the downstream confluence of the

Cedar River tributary at about river

mile 29 on the Iowa River, known as the

"Lone Tree" plaintiffs. Third, those

below the Cedar River confluence and

river mile 6.2 above the mouth of the

Iowa River, known as the "Wapello"

plaintiffs.? The flooding experience of

each group varlied according to location

in relation to the dam. Their-.common

complaint is that, since the construction

of the dam and Reservoir, water lingers

on their properties for longer periods

and interferes with their farming proce-

dures and production. Many complain of

1

There is an immaterial discrepancy in the

defendant's facts of record classifying

four plaintiffs as being within the Lone

Tree category of plaintiffs even though

their properties lie along the Iowa River

Slightly below the Cedar River confluence.

The discrepancy does not alter the results.

5

subsurface saturation (i.e., excessively

high water tables) which kills crops and

reduces yields, and of floods occurring

later in the growing season than before

which harm immature plants at times too

late to replant.

Technical evidence establishes that

flooding and subsurface saturation

increase susceptibility of plants to

diseases and parasites, lose soil

nutrients through denitrification and

leaching, create ponds which inhibit

oxygen circulation in the soil and

beneficial bacterial activity, delay farm

eperations and prevent uniform treatment

and lower soil temperatures.

The plaintiffs contend that the

primary flood control purpose of the dan

has been subverted to favor competing

recreational and real estate interests

6

of the land fringing the Coralville

Reservoir by maintenance of high

Reservoir levels designed to minimize

unsightly marshy fringes at lower levels,

thereby reducing the Reservoir's storage

capacity and requiring higher discharge

rates from the dam on occasions of high

inflows from heavy precipitation or snow

melts. Plaintiffs also charge that the

Corps' regimen of high Reservoir levels-

and consequently low storage capacity-

is maintenance to confer flood protection

benefits on riparian owners on the parent

Mississippi River into which the Iowa

River discharges, to the plaintiffs'

detriment.

In regulating the discharges from the

dam and controlling the levels of the

Reservoir the Corps endeavors to maximize

the efficiency of the one and optimize the

7

storage capacity of the other by a con-

stant juggling process. The regulatory

scheme is based on a quantitative preci-

pitation forecast prepared by the River

Forecast Center. Rainfall predictions are

added into streamflow data by use of a

unit hydrograph to determine estimated

Reservoir levels resulting from runoff

and precipitation directly into the

Reservoir. The Reservoir crew is kept

constantly advised of imminent flood crests.

By these means the Corps has sub-

stantially enhanced the effective storage

value of the Reservoir. For example, in

1973 the total river flow at Marengo

(above the headwaters of the Reservoir) was

2,732,000 acre feet, or five times the

475,000 acre feet storage capacity of the

Reservoir.

In response to complaints from down-

8

stream farmers the Army Corps of Engineers

(hereafter "corps") inaugurated Plan 8

in 1963 and early 1964 for regulation of

the dam's operation, but it did not

resolve the complaints. Under Plan 8, the

Reservoir elevation starts the year at 680

ms1? by and generally (starting February 1)

lowers to 670 msl by February 15, where it

remains through June 15. The spring

conservation pool level of 670 msl is

exclusively for flood control, i.e., to

increase Reservoir capacity to accommo-

date spring floods which customarily

occur in the spring months. From June 15

to September 15 the Reservoir elevation is

maintained at 680 msl. The summer con-

servation level of 680 msl benefits

recreational uses of the Reservoir and

insures against drought conditions. To

2Meaning: 680 feet above mean seal level.

9

some extent the operation of the dam,

originally designed for the exclusive

purpose of flood control, has been modi-

fied as stated to also benefit competing

but subservient recreational and real

estate interests.

Although plaintiffs contend that the

dam is operated to benefit riparian owners

on the Mississippi River to plaintiffs'

detriment, in reality the dam is operated

to modify the effects of each flood in

sequence as it occurs. No preference is

shown to non-Iowa River interests, but on

the other hand, neither are Iowa River

interests favored.

The Corps concedes that the dam

lacks ideal storage capacity, but has

shown that a larger dam was neither

economically nor physically feasible. The

size of the dam was limited by the geo-

10

graphy of its location, and even if a

larger dam could have been built, the

consequent greater storage capacity would

have caused a higher pool elevation which

would have been detrimental to the Amana

Villages upstream from the head of the

Reservoir.

Plaintiffs contend also that sedi-

mentation, which reduces the storage

capacity of the Reservoir, is one of the

causes of their problem. Increased

sedimentation, according to upstream

plaintiffs, has extended the backwater

effect of the Reservoir, while downstream

plaintiffs allege that the reduced

capacity of the Reservoir due to sedimen-

tation has forced the Corps to increase

dam discharges, thereby elevating the

stream level. The contention is refuted by

engineering data. Although the most

ll

recent 1975 survey shows that since 1959

approximately 20 percent of the summer con-

servation pool (680 msl) has been filled

with sediment (capacity reduced from

590,000 acre feet to 40,300 acre feet),

and that the storage capacity below 670

msl has bwen reduced by approximately 50

percent (from 17,000 acre feet to 10,000

acre feet), sedimentation has had a

negligible impact on the flood control

capacity of the Reservoir. This is

explained by the V configuration of the

Reservoir, causing the bulk of its storage

capacity to exist at higher elevations.

The sedimentation rate has exceeded

expectations because the inflow has been

greater than the 30-year averacge, but at

the end of 100 years of operation it is

estimated that the Reservoir will retain

90 percent of its flood control pool at

gi a a a

>»

12

712 msl. The sedimentation that has

occurred thus far is insufficient to have

produced the flooding and saturation

effects of which the plaintiffs complain.

The Marengo plaintiffs, located at

river mile 138 approximately 55 river

miles upstream from the dam, have failed to

show that sedimentation at present levels

can cause the backwater effect they claim.

Field surveys made in 1960, 1965 and 1969

show that the furthest upstream any back-

water influence from Coralville Reservoir

has occurred is between river miles 120

and 124,

All three groups of plaintiffs argue

that the level of the ground water table

has been raised by greater upstream. flows

which, alghough of lower elevation, none-

theless remain high for an extended

period of time. However, plaintiffs have

£3

failed to show that the ground water

basin, in general, is responsive to

streamflow. There is a reinivonanss

between rainfall and ground water level,

but the response of ground water level to

rainfall is very slow compared to the

response of stream level to rainfall.

Rain water percolates into the ground

and recharges the ground water basin,

whcih acts as a huge underground reservoir.

The level of the ground water basin does

not synchronize with changes in stream

level. An exception to this general rule

is with respect to the land immediately

adjacent to the streambanks and

extending back from it as much as 200 to

300 feet. At trial plaintiffs introduced

evidence on this "bank storage" theory to

the effect that water will move out of the

streambed and into adjacent land when the

14

level of the water in the stream is higher

than the water table of the adjacent

land. For example, on November 14, 1969

(an excessively wet year), the stream level

was higher than the adjacent ground water

level and there existed a bank storage

condition for about 200-300 feet back from

the river. However, the theory is of

minor significance in the present situa-

tion since most of the time the Iowa

River is an effluent stream carrying

ground water out of the basin rather than

an influent stream carrying water into the

river banks and recharging the ground

water table. The bank storage phenomenon

when it occurs is normally confined to

relatively narrow strips of land parallel

to the river.

This conclusion is further supported

by the analysis of infrared aerial photo-

15

graphs supplied by the government.

Infrared aerial photography and "remote

sensing" technologies were used at trial

in assessing relationships if streamflows

and the agricultural uses of plaintiffs’

farms bordering the river. Developed

during World War II, infrared photography

not only enables reliable detection of dead

or decaying vegetation at early stages

because of the early loss of infrared

reflection, but has an enhanced ability to

register ground moisture. Totally satur-

ated soil appears black in the film. As

soil drives out to 10-20 percent moisture

content it becomes progressively lighter

on the infrared film.

The accuracy of infrared photography

was verified by actual onsite saturation

tests correlating the May ll, 1976,

infrared photography with observed data.

16

Samples taken from the darkest areas on

the imagery showed saturation of 38

percent. Samples taken in light-tone

areas showed 25 percent saturation. The

25 percent area supported travel by farm

vehicles and appeared capable of culti-

vation. While recognizing the limitations

of infrared photography, the government's

exhibits are convincing evidence that the

bank storage effect is physically limited

to narrow strips of land on the river

banks.

Normal annual rainfall over the Iowa

and Cedar River Basin averages from around

30 inches over the headwater region to

about 35 inches at the mouth of the river.

During the April to September growing

season Iowa normally receives about 70

percent of its total annual precipitation.

Rainfall peaks in the month of June at a

rT

normal amount of 5 inches. Since con-

struction of the dam, rainfall of from one

to four inches above annual norms was

epxeriences in 196C, 1969, 1970, 1971 and

1974. In 1959, 1961, 1965, 1972 and 1973

annual rainfall averaged 5 inches or more

above normal. Thus, in 10 of 16 post-

dam years from 1959 through 1975 the

annual rainfall was either above normal

or sharply above normal.

High precipitation levels resulted

in high runoff. and high stream levels.

Eighty of the 120 months between 1967 an@

1976 had above normal streamflows.

Thirty-one consecutive months from July

1972 to January 1975 had above normal

streamflows. Twenty-six consecutive

months from July 1970 to August 1974 were

in the "excessive flow" or upper quar“ile

of streamflows. July 1969 had the highest

18

monthly flow in all 888 months of

recorded flows on the Cedar River.

The government prepared an elaborate

"benefits analysis" by means described in

Appendix A following the findings. Each

of the years from 1959 to 1974 was analyzed

for the potential of raising a crop,

using two hypotheses: one, regulated

flows with Coralville Dam in position,

and two, unregulated flows without

Coralville Dam. The benefits analysis

reconstructed the crops saved, replants

saved, yield reduction, and overtopping

of levees and gravity drains allowed.

In all but one area, wherever the regula-

tory effect of the dam was more than

negligible crop benefits resulted from the

dam. In essentially low water years which

resulted in good crop years, such as 1963,

1964, 1967. and 1968, as well as the

19

wetter years 1959, 1961 and 1971,° crop

results would have been the same with or

without the dam in place. Plaintiffs'

complaints of flooding are confined to

essentially high water years.

The benefits analysis for the more

troublesome wet years 1960, 1962, 1965,

1966, 1969, 1970, 1972, 1973 ana 19744

>the level of precipitation during 1959

was strongly above average; however, the

heaviest rainfall occurred during the end

of March through the beginning of April.

This allowed sufficient time for the

soil to dry and permit a normal planting.

1961 also recorded strongly above normal

rainfall but here again the rains missed

the planting season. In 1961 March,

July and September were among the wetter

months while April, Man and most of June

were rather dry. Therefore,under both

regulated and unregulated modes, the crop

yields were similar.

4al though 1962 and 1966 did not have above

normal rainfall in total, the rainfalls

that did occur was primarily during the

growing season. In 1962 the end of May

and the beginning of June, as well as the

entire month of July, were wet. In 1966

the entire spring was guite wet, with the

month of May experiencing the heaviest rain-

fall. The timing of the rainfalls is quite

important. Where the growing season exper-

iences unusually h »vy and frequent storms

the difference be .cen the benefits gained

from the regulated versus the unregulated

condition is substantial.

20

demonstraces direct and clear benefits to

the Lone Tree plaintiffs since the opera-

tion of the Coralville Dam. (See finding

58). Only a small measure of benefit or

detriment was provided the Wapello

plaintiffs by the dam during the wet years

listed. This is because the flow at

Wapello, where the river widens substan-

tially and has a much larger capacity, is

the product chiefly of unregulated trib-

utaries, especially the Cedar River. In

the Wapello area the dam controls only

about one-fourth of the total Iowa-Cedar

River watershed embracing over 12,000

square miles above Wapello. The plaintiffs

in the Wapello area are beyond meaningful

control by the Coralville Dam. The

problem of ungauged and unregulated tribu-

taries contributing significant amounts to

the streamflow of the Iowa River is also

21

relevant to a lesser extent to the Lone

Tree plaintiffs situated between the

Coralville Dam and the confluence of the

Iowa and Cedar Rivers.

Plaintiffs contend that the construc-

tion and operation of the dam generated

inevitably recurring floods and constitu-

ted a "taking" of plaintiffs' properties by

the government. Although plaintiffs

concede that government operation made

skillful use of the inadequate Reservoir

capacity, they contend that in order to

alleviate flooding in different downstream

reaches of the Iowa River, or even the

Mississippi River, it has been necessary

at times for the Corps to create river

stages in the Iowa River reaches down

stream from the dam-¢which are at times

unavoidably detrimental to farming opera-

tions in the growing season. Plaintiffs

22

further contend that the result of the

prolonged elevated river stages has been

the blockage of natural drainage into

the stream thereby causing subsurface

saturation of adjacent lands. According

to plaintiffs' argument this saturation

has been and will continue to be a

source of damage to plaintiffs’ lands and

will predictably worsen as sedimentation

progresses in the storage pool.

Defendant denies any taking, con-

tending that plaintiffs failed to prove

that water problems experienced by all

classes of plaintiffs were due to, or the

consequences of governmental action, i.e.,

attributable to the dam. Defendant main-

tains that water problems experienced by

downstream plaintiffs were not attributable

to the dam. It asserts that water problems

experienced by downstream plaintiffs

23

occurred despite and not because of the

dam, and that the net benefits conferred

by the dam to these plaintiffs were sub-

stantially in excess of any minor damage

attributable to the dam.

Plaintiffs say that Iowa State law

applies, since real property complaints

are inherently a local matter. Under

Iowa's constitution benefits are excluded

from consideration when part of a tract

is taken, the measure of damages being

the difference in value of the tract before

and after the taking, irrespective of any

benefit. 3 NICHOLS ON EMINENT DOMAIN,

8.6211[16]. Iowa law is not applicable.

In Koh v. United States, 91 U.S. 367,

374 (1876), the court stated:

if the United States have the

power [of eminent domain] it

must be complete in itself. It

can neither be enlarged nor

. diminished by a state. Nor can

any state prescribe the manner

24

in which it [the power] must

be exercised.

In Uncted States v. 19.86 Acres of Land

dn East St. Louts, 141 F.2d 344 (1944),

while interpreting a portion of United

States v. Miller, 317 U.S. 369 (1943)

dealing with the proper measure of compen-

sation in condemnation proceedings, the

Seventh Circuit stated that "the forms

and methods of procedure afforded by the

law of the state do not affect questions

of substantive right." The Court in

Johnson v. United States, 202 Ct.cl.

405, 418, 479 F.2d 1383, 1390 (1973),

held that the issue of what constitutes a

"taking" is a "federal question" governed

entirely by federal law, but that the

meaning of "property" as used by the Fifth

Amendment will normally obtain its content

by reference to state law. See aso

United States Ex. Rel. T.V.A. v. Powelson,

25

319 U.S. . 356, 279 (1943). The character

of the property involved is not at issue

here; the issue is whether there has been

a Fifth Amendment taking of plaintiffs'

properties. Clearly the issue is governed

by federal law, and not the law of the

State of Iowa.

We have noted earlier the area

rainfall statistics, a rainfall prepon-

derance during the April-September growing

season, and the abnormal prevalence of

rainfall during 10 of the 16 post-dam

years. In those excessively wet years

the Reservoir's high levels were often

accompanied by high downstream water

levels of both the Iowa River and its

regulated and unregulated tributaries.

Faced with the need to reduce the hich

levels of the Reservoir because of actual

or impending heavy rainfalls in the area

the Corps had no alternative to increasing

26

the rate of discharge from the dam,

despite temporary consequences to down-

stream farmers.

Excessive precipitation was the

root cause of the flooding experienced by

palintiffs in the wet years of which

they complain. The government's mani-

pulation of releases from the dam played

only a secondary role. The United States

is not liable for flood damages unless

directly attributable to governmental

action. Indirect or consequential damages

are not compensable. In several flooding

cases plaintiffs have failed to recover

under their Fifth Amendment claim because

they failed to prove the element of

inevitably recurring floods. Fromme v.

United States, 188 Ct.Cl. 1112, 1118, 412

F.2d 1192, 1196 (1969); National By-

Products, Inc. v. United States, 186 Ct.

Cl. 546, 575-78, 405 F.2d 1256, 1272-74

27

1969; North Counties Hydro-Electnric Co.

v. United States, 108 Ct. Cl. 470, 70 F.

Supp. 900 (1947); North Counties Hydro-

Electric Co. v. United States, 138 Ct. Cl.

380, 151 F. Supp. 322, cert. denied,

355 U.S. 882 (1957); B. Amusement Co. v.

United States, 148 Ct. Cl. 337, 180 F.

Supp. 386 (1960). Here the damage was not

the natural consequence of government

action. Therefore, we need not speculate

over the likelihood of recurrence of the

physical conditions in the Iowa River

Basin causing the damage experienced by

plaintiffs during the years in issue.

For factual reasons heretofore

detailed, the operation of the dam and

Reservoir had no influence in producing

the conditions of which the plaintiffs com-

plaint in the Marengo area upstream from

the Reservoir, and little if any influence

?%

28

on the conditions complained of by

plaintiffs in the Wapello area. As to the

plaintiffs in the Lone Tree area,

occasionally the lower areas of their farms

bordering the river became too wet to

farm. However, the great majority of

these conditions occurred in excessively

wet years and would in all likelihood

have happened without the existence of the

upstream dam. The remaining instances,

where the operation of the dam caused

sustained high levels of the stream which

kept the lower areas of the adjacent

farms too damp to farm, and which might

properly be attributed primarily to the

dam rather than to meteorological events,

were heavily countervailed by the benefits

to the farmlands as a whole, whether to

rescue them from the damaging effects of

floods or to save them from the conse-

29

quences of drought conditions. The

benefits analysis study provided by the

government, and which was not effectively

challenged by the plaintiffs, demonstrated

these benefits quite conclusively.

It was held in United States v.

Sponenbanrger, 308 U.S. 256, 266-67 (1939),

that:

if governmental activities

inflict slight damage upon land

in one respect and actually

confer great benefits when

measured in the whole, to compen-

sate the landowner further would

be to grant him a special bounty.

This principle was applied in Axrk-Mo

Farms, Inc. v. United States, 209 Ct. Cl.

116, 530 F.2d 1384 (1976), where the

government's unchallenged hydrological

data showed that the river control project

had in fact decreased peaks, duration and

frequency of high level floods at

plaintiff's farm. Citing Sponebargenr,

30

the court in Arxk-Mo Farms held that it was

a case of at most "little injury in

comparison with far greater benefits

conferred." To similar effect see the

recent opinion in Accardi v. United

States, 220 Ct. Cl. _—,_-«599 F.2d 423

(1979). The Fifth Amendment does not make

the government an insurer against all

damages from floods which may be inci-

dental to projects conferring major

benefits far outweighing detriments.

Plaintiffs are not entitled to

recover.

CONCLUSIONS OF LAW

Upon the trial judge's findings and

foregoing opinion which are adopted by

the court, the court concludes as a

matter of law that plaintiffs are not

entitled to recover and, therefore,

plaintiffs' petitions are dismissed.

APPENDIX

Exhibit 2

IN THE UNITED STATES COURT OF CLAIMS

Nos. 170-75, 185-75, 213-75,

217-75, 222-75, and 352-75

FRED W. BARTZ, et al,

Ve

THE UNITED STATES.

Before KASHIWA, Judge, Presiding,

KUNZIG and BENNETT, Judges.

ORDER

This case comes before the court on

plaintiffs' motion, filed July 29, 1980,

pursuant to Rule 15l(b), for rehearing to

alter the findings and judgment and for a

new trial with reference to the decision.

entered herein on July 16, 1980, dis-

missing plaintiffs' petitions. Upon

consideration thereof, together with the

response in opposition thereto, without oral

argument,

IT IS ORDERED that plaintiffs' said

motion for rehearing, filed July 29, 1980,

be and the same is denied.

BY THE COURT

/s/

Shiro Kashiwa

Judge, Presiding

APPENDIx 1

Exhibit 3

The government formulated a crop

planting simulation pertaining to the

plaintiffs' farms along the Iowa River

below Coralville Dam. At trial, the

government first presented its expert

witnesses, Mr. Renz, a soil expert,

Mr. Koellner, a hydraulic engineer, who

testified on direct examination to establish

the general procedure they used for the

analysis of plaintiffs' properties for

Coralville Dam benefits. After cross-

examination, each then testified again on

direct examination as to the farm of each

particular plaintiff. Then the individual

plaintiff whose farm had just been dis-

cussed on direct by the government's

experts testified as to his farming

experience during the relevant years, and

was then subjected to cross-examination by

government counsel. This procedure was

1 wae

Excerpt from Findings of Fact by Judge

Bernhardt

2

repeated for each farm involved in the

suit wherein its owner or operator was

present at trial. This experiment with a

novel trial procedure was logical under

the circumstances and provided a coherent

record.

Before each individual property was

analyzed in the manner described, the

following assumptions were made by the

government's experts in the crop planting

Simulation: corn is from April 15 to

June 1, and soybeans from May 1 to July l,

based on advice from Doane's Agricultural

Services at Ottumwa, Iowa. Assuming that

the river was over bank and had receded to

within its banks, the simulation allowed a

10-day drying out period before crops

could be planted. This information was

obtained from three sources:7 Mr. Renz, the

soil scientist; Mr. Steinhibler, a ground

‘emphasis added

water hydrologist with the U.S. Geo-

logical Survey at Iowa City: and

plaintiffs' testimonies.

The government also assumed that an

average rainfall of not more than 2 inches

over the Iowa River BasSin on one day

would allow a crop to be planted at the

end of a 10-day drying period. However,

in the case of a 2-inch or more rainfall

occurring on a single day, during that

10-day drying out period, an additional

5 days were added to the drying out

period to assure more than adequate time

for the property to drain. Again, the

government relied on Doane's Agricultural

Service's specific soil charts on infil-

tration rates to determine the necessary

time allowed before owners could get back

in the fields and plant a crop in ground

that could support farming equipment.

1

Emphasis added

4

Assumptions also were necessary in

regards to the duration of water that was

necessary to affect crop damage. For

example, once the water rose and inundated

part of a planted field, some damage

occurred. It was ascertained that a corn

crop would be lost if water inundated the

crop for 4-5 days during the growing

season (through August 31), and a soybean

crop would be lost if inundated for 3 days

during the growing season. Inundation was

equivalent to at least one inch over the

root zone, which would deprive the plant of

oxygen needed for growth. If the inundation

lasted for a period less than 4 to 5 days

for corn, and less than 3 days for soybeans,

there would be a reduced yield. Doane's

Agricultural Services was the source for

these assumptions.

APPENDIX

Exhibit 4

While Mr. Renz testified to many

aspects of soil characteristics, the

record does not support any reference to

the crucial 10-day dry out.

Mr. Steinhibler's name first appears

in the Court Order (not the record here)

and may be confused with Sulo Wiitala, a

witness here, but in neither event did the

witness establish a 10-day dry out.

The three farmers (plaintiffs)

referred to by the Court testified to a

man that while the river was kept bank

full, the fields did not dry out. This

was specifically pointed out to the Court

of Claims on Plaintiffs' Motion for

Rehearing, p. 2 and 3 as follows:

The government based its contention

and Judge Bernhardt found that the govern-

ment regulated river flow: (1) caused

the farmers no crop damage; and (2)

conferred a net benefit -- all based on the

government's computerized simulation which

in turn assumed

"that the river was over

bank and had receded to

within its banks, the sim-

ulation allowed a ten-day

drying out period before

crops could be planted. ...

This information was

obtained from ... plaintiffs'

testimonies." p. 36, Judge

Bernhardt's opinion.

These plaintiffs' testimonies (cited at

Defendant's Requsted Findings, p. 47) do

not even suggest any such thing:

Mr. Walker: "But if they've

got the water held up against

you, it ain't going to dry

off so you can get at it."

TB STs

Mr. Strong: "...and they

raised their outflow to

10,000 (bank full)... By

the next day, I had a swamp

I couldn't even get through

with a tractor." T. p. 120-

L2z.

Mr. Womer: "...when the

river comes up --- the

water comes ... from up

underneath ... we can't

get to it (farming).

Mr. Koellner: (government

witness on cross-examination):

Q. ...did you ever go out

into the field to verify

whether or not this foot-

and-a-half of dry freeboard

that you are assuming

actually existed in the

regulated simulation?

A. Ho, I dia not. T. p.

1329-1330.

The most painstaking search will show

that the reliance by the Court opinion, p.

36, that the assertion of a 10-day dry out

by Messrs. Renz (assumed no river bank full

water blockage to contend with) and

Steinhibler (opinion only, unsupported by

Similar facts).

APPENDIX

Exhibit 5

FREEBOARD

As defined in the American College

Dictionary, "freeboard" is: "noun,

nautical, the part of a ship's side between

the waterline and deck of the gunwhale;"

obviously not a term normally applicable

to the corn fields of Iowa.

The term was injected into this

record by Judge Bernhardt, who hails from

New England, as a rather apt description of

the oxygenated soil above the phreatic line

and the top of the farm field.

As applied to the Iowa corn field, it

involves the route zone of the row crop

(mainly filed corn or soy beans) in the field.

The ‘adequate understanding of the

“freeboard” is crucial to this case for it is

this area of the farm field that is involved

in the planting, cultivation, growth, and

support of the crops, and which, if

2

saturated by stagnant water, effectively

suffocates and stunts or kills the growth

of field corn or soy beans.

“ CERTIFICATE OF SERVICE

a The undersigned hereby certifies that a true copy of

ne toregoing instrument was served upon each of the

atvorneys of rocord of all parties to the above-entitied

by enciosing the same in an envelope addressed

| ettorney at his respective acidress as dis-

© pleadings cf record harein, with postage

j C, oad by depositing said envelope in a United

ad. C'rice depository in lowa City, lowa on this

+10 nmmee ones + on weewen wee

Yay ¢!