Appendix — Kemp v. Coleman
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85-1952
No.
Supreme Court, U.S.
FILED
4
IN THE SUPREME COURT
OF THE UNITED STATES
May Term, 1986
AVABELLE BASKETT, ET AL., PETITIONERS
Vv.
THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES CLAIMS COURT
APPENDIX TO PETITION
FOR WRIT OF CERTIORARI
Norman E. Hay
GLEASON, HAY & GLEASON
7th & Taylor Streets
Cannelton, Indiana 47520
Phone: 812-547-3432
Attorney of Record for Petitioners
EDITOR'S NOTE
THE FOLLOWING PAGES WERE POOR
HARD COPY AT THE TIME OF FILMING.
IF AND WHEN A BETTER COPY CAN BE
OBTAINED, A NEW FICHE WILL BE
ISSUED.
CONTENTS
TELS OS BAEC CAC UES 6c 66 oe oo8d soo
Decision - United States Court of
Appeals For The Federal Circuit.....
Opinion - United States Claims
Order Granting Motions In Limine....
Oraer Beteing TELA) Oates s éscs-ckvees
ii
“)
- : : er: a =
TABLE OF AUTHORITIES
CASES:
A. H. Emery Co. v. Marcan Products
Corp., 389 F.2d 11 (2nd Cir.
1968), cert. denied, 393 U.S.
EE oe a 161
American Machine & Metals Inc., v.
DeBothezat Impeller Co.,
S32 F.Supp. 556 (S.D.N.Y. 1949),
aff'd. per curiam, 174 F.2d 890
(2nd Cir. 1949), cert. denied
OS a 161
Anderson v. City of Bessemer City,
Denese Mette. £08 (L9ES) cc cceses 3
Baker v. Carr, 369 U.S. 186 (1962).. 173
Barnes v. United States,
Bae GteGh. 467, 538 F.2d 865
i. oo a as 66 see ee eee 0 35, 132, 140
Barry v. St. Paul Fire & Marine
oe. Sed £.2G 3, (ist Cir.
DC ce hee eee chee eee eh ee eb ences 192
Baskett, et al. v. United States,
. (tS GS Pe! +) ae asa
Boraiko v. United States,
Oe oe SE SE ee bt]. ) ea 193
Campbell v. United States,
Zae Ge.Ci. O61, S661 F.2d 209,
Se ee ee ee ee 109
Catlin v. United States,
a SE A LY 4 ee 234
ii
Chamberlain Machine Works v. United
SEeeen, £70 Ucls BSl BASED 6 6 vee eee 190
Cloverport Sand and Gravel Co.
v. United States, 6 Cl.Ct. 178
| Pr eee ee oe eee 125
Coates v. United States,
£24 Ct.Ci. GOG, 110 F.Supp. 47/1,
eb Fr ee ee ee eee ee 36
Cole v. United States,
657 F.2d 107, cert. denied,
a Fe A ee) Se 229
Columbia Basin Orchard v. United
States, 116 Ct.Cl. 348, é
ee F.GMEO. TSS CiSS0) 6c ccc teswcee 139
Commissioner v. Sunnen,
wae Wis SEks CEeeOl oe ance ess 182, 183
Court of Marion County v. United
Scaces, Ss Ct.Ch. i120
bot ere ror ery et eee a eee L311, i336
Cromwell v. County of Sac,
on oe a ee Yr 182
Dilatush v. United States,
S54: CocGhc See. CRP Oel bees ce eeeeve 197
Duane v. Altenburg, 297 F.2d 515
bye Bit Pee. eee eer eee 191
Estate of Mabel Lloyd Ridgely v.
United States, 180 Ct.Cl. 1220
PATE £6 bes eee sae reece 209, ili, ii2
Friedman v. United States,
Aen Giheltbe bs SE Eeam eer, (1962)
SOct. GORiOG, 373 Gis FSdeecvccc 168
iii
Gisriel v. Unirovali, inc., 517 #.24
Gee 10en Catc ROCHE eed ei veueaus cas 47
Goose Creek Hunting Club, Inc. v.
United States, 207 Ct.Cl. 323,
SiS Fide SID CISTS) ceed vsevcrenes 35
Harvey v. Sadler, 331 F.2d 387,
[SER ChE. APSE ce cnctececceotesvens 190
Holcomb v. Aetna Life Ins. Co.,
255 F.2a 577, (l0th Cir. 1958),
cert. denied, 3358 U.W. 879. ecssoes 162
Holm v. United States, 325 F.2d 44,
(Sth Cif. TSGS) cccsvvsivscesscsver 109
Huling v. United States, 185, Ct.Cl.
407, 401 F.2d 998 (1968).......-..-. 196
Japanese War Note Claimants Ass'n
of Phillipines Inc. v. United States,
1/8 Ct.Cl. 630, 373 F-40 359
(1967) cert. denied, 389 U.S. 971,
rehearing denied, 390 U.S. 975
8s) Pere ee ee eee Tee ee ee 167
Jiffy Foods Corp v. Hartford
-Accident and indemnity, 331 F.Supp.
159 (W.D. Ba LO7L) ccccvcsescessecos 202
Karp v. Cooley, 493 F.2d 408
(Sth Cir. 1974), cert. denied
413 UB... Dee tveeetk ns 6en ok eeneeaae 218
Kaufman v. Edlestein, 539 F.2d 81l
(oe CEs SEG) «stents ecant ceaansekes 218
Klein v. Belle Alkali Co.
223 F424 O66 (4ER CAP. L956) os caves 162
Lacey v. United States, 219 Ct.Cl.
551, 595 F.2G G18 (L979). wccer 140, 176
iv
Lincoln Nat. Bank v. Lampe,
414 F.Supp. 1270
(H.C. Bis ZaRs SPS vcs caaes 192, i193
Loesch v. United States,
Zai1 C&.CL. 34; G40 Fi. 20 FOS;
cert. denied 454 U.S. 1099,
(LOGE 6.4 Kc ee ee ewes Ta oGes
29, 41, 3236 Sts 23% Shs
47, 32; 61h. Os the tet Dee
1160, 112,..113, 439, tate Bese
154, .-169, 176, 179, Sie. 893+
Montana v. United States,
40 U.8s EST CLS ret ses ewece cence 184
Nadler Foundry and Machine Co. v.
United States, 143 Ct.Cl. 92, 164
P.Supp. 249 (1958)... 138, 139, 144
Nelson v. Keefer, 451 F.2d 289,
(S20 Civ. L907 k) ct wvcecvensvetb enw 161
.orth Countries Hydro-Electric
Co. Vv. United States, i3i Ct.Cl.
380, 141 F.Supp. 322, cert.
denied, 355 U.S. 882 (1957)... 140
Oglethorpe Co. v. United States,
2i4 Ct.Ci. S551, 3536 7.26 S30, .
(LOTT) pc cccetneeteeewescébeectnenes 182
Randoiph v. Collectramatic, Inc.,
590 F.2d 844 (10th Cir. 1979).... 207
Rhoads v. United States
6 GAcGCes SPE: Se hh04 aus a6, 37, a
Rozier v. Ford Motor Company,
S73 F¥.420 i334 (oem CAaks 1978)... +. 206
Sanguinetti v. United States,
264 U.S. LOG (EPS Ob coc ccs cress cus 37
Vv
Sauer v. United States 173 Ct.Cl.
Sats 2a Bae SUE CEPOCSE cc cccccses 167
Scham v. Kolowich, 2 F.R.D. 343
| & Ri eb ob ee ee 161, 166
Sears Roebuck & Co. v. Mackey,
Soh UeBs S27 CASSG) a wa ccesccsecess 234
Singleton v. United States,
S Ghetese Sam CRPOSl cence weseinssns 129
Soriano v. United States,
io PS Me, Bes ps errr rer re 172
State of Washington v. United States,
214 F.2d 33 (9th Cir. 1954),
cert. denied, 246 U.8. 862. .sccses 61
Stockton v. United States,
SE GeeGas SECs SAUTE bocca eeeueses 36
United States v. Chandler-Dunbar,
Water Power Co., 447 Gabe OS
el tk) Pw eTy. TEE CT ee Te 34
United States v. Cress,
2G Gels Dae GCEPETE 666 cea cee et ane Lh.
United States v. Dickinson,
Bak Ucts. FES CEPSTE cece eccecses 36, 231
United States v. Dow,
Sat UcBs 22 TEPSS co ccecseceessscs 175
United States v. Kansas City, Ins.
CO.» 339 Us. FFF (CLFSG) wc ccccvsves 34, 35
United States v. Manning, 509 F.2d
1230 (9th Cir. 1974) cert. denied
va me i Fe >) re ewer a a ee ee 205
vi
United States v. Sponenbarger,
SUS U.S. 256 CASI canvases sewn 108
United States v. 329.05 Acres of
Land, 156 F.Supp. 67 (S.D.N.Y. 1957),
@azr’@, 263 F.2@ 331 (2d Car.
ie |) | eee eee ee eee Se Ce Oe Lid. 229
United States, ex rel. T.V.A. v.
137 Acres of Land, 406 F.2d 1283
Teun Gals BOOP) + oka bb ae nea e ee Lid. ia?
Voluntine and Littleton v. United
States, 144 Ct.Cl. 723,
169 F.Supp. 263 (1959)........... 42
Warth v. Seldin, 422 U.S. 490
CATS) pce meee cece reecccsesicvcenss 173
Wirtz v. Young Elec. Sign Co.,
315 F.2d 326 (10th Cir.
oS 5 iy een as ee ae ee 161
Yazel v. United States, 118 Ct.Cl.
39, 9S FP.SUPP. 1LOOGU. wc cccccece 36, 40,
41, 108
Zenith Radio Corp v. Matsushiate
Elec. Ind. Co., 505 F.Supp. 1125
fas POE LEGO) ce ceeceensees 157, i63,
202, 203
STATUTES AND RULES:
28 U.S... Bae. 272 tS) (19) CL Fd accans 230
2 ey ae |" 5 ere eee 133
a) Boe - BOs e cee ew eeseeeesens 165
SO Cudcs BESORe SOC. Cs cca vvseens 201
oe AR | Ae ae eee ee 154
RE ES og cnc ncen eases need sanenees 190
Se OD ck beh euesbeeeeae eda e's 233
Pe Db wes on 06 OOK OO HS 159, 201, 202
Pe BE kb KR ODESAECMS EKER ROT CES 202
STATUTES AND RULES, Cont'd.
Pe re ee Os 6o KN.6 OH SOOO eA eS oO 205
AUTHORITIES:
J. Moore, 1B Moores Federal
PEOCCLOO ss Dex SOS iee ca cus eh ec ecu 182
3 J. Moore, Moore's Federal .
PEMCCAGGs DEER: 20« 8600 65 4% 0 ses 162, 201
3 J. Moore, Moore's Federal
PEGGULCOs WORE. 261 bbc 000k ccc ieess 162
ll J. Moore, Moore's Federal
PESCELCO, BOC. FES SOtE) kis vs ck Ko BS gad
C. Wright & A. Miller, Federal
Practice and Procedure, Sec. 1525.. 160
C. Wright & A. Miller, Federal
Practice and Procedure, Sec. 5037.. 157
6 C. Wright & A. Miller, Federal
Practice and Procedure, Sec. 1529.. 163
21 C. Wright & K. Graham, Federal
Practice & Procedure, Sec. 5037.... 202
Manual For Complex Litigation,
fe te Leer eee eee errr ee eer ET ee ee 203
villi
| aie eet
1
Note: This opinion will not be published
in a printed volume because it does not
add significantly to the body of law and
is not of widespread legal interest. It
is a public record. It is not citable as
precedent. The decision will appear in
tables published periodically.
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
AVABELLE BASKETT, et al.,
Appellants
Appeal No.
85-2570
)
)
)
)
Vv. )
)
THE UNITED STATES, )
)
)
Appellee.
DECIDED: February 25, 1986
Before DAVIS, SMITH and NEWMAN, Circuit
Judges.
PER CURIM.
DECISION
The decision of the United States
Court of claims, 8 Cl. Ct. 201 (1985),
concluding that appellants are not en-
titled to recover and dismissing their
complaints, is affirmed.
a
OPINION
These consolidated cases involve
the question whether the construction
and operation of certain high-lift
dams erected by appellee on the Ohio
River are the cause of erosion on the
appellants’ lands. This is basically
an issue of fact. After a full trial,
with witnesses on both sides, Judge
Lydon determined in a long and compre-
hensive opinion that the erosion had
not been proved to be due to the dams.
We have no doubt that the judge's
factual findings and conclusions were
far from clearly erroneous, if er-
roneous at all. There were experts
on both sides and the trier was en-
titled to accept the testimony of
appellee's experts over that of ap-
pellants' experts and lay witnesses.
A reading of the trial court's detail-
ed opinion demonstrates that its
SS
factual determinations have adequate
support in evidence. Appellants have
not at all shown us otherwise but simply
prefer the evidence given for their side.
In these circumstances, we cannot assess
the evidence de novo but instead must
accept the trial court's findings.
Anderson v. City of Bessemer City, N.C.,
1/
105 Ss. Ct. 1504, 1512 (1985).
The legal issues in the case were
mainly determined by the Claims Court
(Lydon, J.) in a pretrial opinion.
Baskett, et al., v. United States, 2 Cl.
Ct. 356 (1983). These rulings were either
correct as a matter of law or within Judge
Lydon's discretion as the trial judge.
These rulings therefore cannot be upset.
The sum of the whole appeal is that
1/ An earlier trial in a practically identi-
cal | case, brought by other landowners, had also
resulted in a judgment for appellee. Loesch v.
United States, 645 F.2d 905 (Ct. Cl.), cert.
denied, 454 U.S. 1099 (1981).
a ea en eS ee
4
appellants have presented us with no
sufficient ground for overturning the
Claims Court's findings and rulings.
»
IN THE UNITED STATES CLAIMS COURT
Nos. 161-78, 340-78,
317-79L, 311-80L,
and 616-80L
(Filed: May 10, 1985)
AVABELLE BASKETT,et al.) Eminent domain;
) inverse condem-
) nation;erosion;
Vv. ) ordinary high
) water marks;
) statute of
)
THE UNITED STATES limitations.
Norman E. Hay, Cannelton, Indiana,
attorney of record for plaintiffs.
Charles S. Gleason, Gleason, Hay &
Gleason, of counsel
Hubert M. Crean, Washington, D.C.
with whom was Acting Assistant Attorney
General F. Henry Habicht, II, attorney
of record for defendant. Regina R. Belt
and James C. Brennan, of counsel.
OPINION
LYDON, Judge: In these five consoli-
1/
dated cases,— some 95 owners of some 135
1/ By order dated July 31, 1981, these five
cases were consolidated for purposes of further
6
tracts of land adjacent to and/or on
tributaries of the Ohio River origi-
nally sued to recover damages which
they allege they have incurred and are
continuing to incur as a result of ac-
tivities relating to the construction
and operation of some 7 high-lift dams
by the United States Army Corps of
/
Engineers (Corps) .4 The issues pre-
sented in Plaintiffs' petitions (com-
1/ Cont'd
proceedings. At this time all the parties
agree that the overall similarity of the
cases is such that disposition of these
cases in a single opinion is appropriate.
The only issue before the court is that of
liability. The issue of quantum was reserved
for further proceedings, if necessary.
2/ The claims of 9 of the original 95
plaintiffs were dismissed at trial with the
consent of counsel: Warren Fisher (9) and
Clarence Pannett (16) (Docket No. 161-78);
Richard E. Blake (3), Jessie E. Bullock, Jr.
(5),Harry R. DeVore, Jr. (13), Edwin A. Hart
(20), Frances Mathis (29) and Raymond and
Loretta Meyers (31) (Docket No. 317-79L).
Donald Allen (1), a plaintiff in Docket No.
317-79L was deceased at time of trial.
Counsel, despite numerous efforts was unable
to get the heirs of Donald Allen to enter the
-
plaints) are identical to those raised
by 23 different owners of land adjacent
to the Ohio River in Loesch v. United
2/ Cont'd.
litigation by means of substitution. There was
no testimony from the owners of the Donald
Allen property. Defendant suggests that under
the circumstances the claim of Donald Allen
should be dismissed, which suggestion was not
opposed. The court accordingly dismisses the
claim of Donald Allen. See Baylor v. United
States, 198 Ct.Cl. 331,366-69 (1972). Finally,
Joel Deckard (2) a plaintiff in Docket No.
311-80L, conceded at trial that his claim was
not an erosion claim but was based on another
ground. Since his claim has been misdescribed,
the court allowed his claim to be separated out
from Docket No. 311-80L and set forth as a new
and separate case under "Docket No. 311-80L
(Deckard)." As a result of these actions, it
would seem that the claims of 84 plaintiffs
remain. Husband and Wife are treated as one
plaintiff. However, because of erroneous owner-
ship designations in said petitions (com-
plaints), ownership of land tracts in different
dam pools by the same plaintiff, joint owner-
ship of one tract by more than one plaintiff
and other factors, the number of plaintiffs
utilized in the narration of the facts will not
correlate with the number of plaintiffs set
forth in the complaints. This discrepancy, how-
ever is of no significance. The number of land
tracts at issue was correspondingly reduced by
at least 11 so that approximately 125 tracts
remain at issue. Additionally, though these
cases initially placed at issue construction
and operation of 7 high-lift dams, the number
was reduced to 5 dams at the time of trial.
8
States, 227 Ct. Cl. 34, 645 F.2d 905,
cert. denied, 454 U.S. 1099 (1981) .3/
However, the court's ruling on De-
fendant's November 22, 1982, "Motion
in Limine", filed pursuant to RUSCC
16, narrowed this litigation to a
Single issue. See Baskett v. United
States, 2 Cl.Ct. 356 (1983). That
Single issue involves the question of
whether the construction and the oper-
ation of certain high-lift dams on the
Ohio River are the cause of erosion on
plaintiff's lands. If so, then such
3/ The court notes that, other than the
elimination of the issues concerning ease-
ments in these cases, issues in these cases
are identical to those presented in Loesch v.
United States, 227 Ct.Cl. 34, 645 F.2d 905,
cert. denied, 454 U.S. 1099 (1981). Plain-
tiffs in the two litigations were represented
by the same counsel. Plaintiffs advanced es-
sentially identical theories. The only
difference between the two litigations is
that the plaintiffs in the cases at bar are
different, plaintiffs' experts are different,
the land tracts are different and two more
high-lift dams are at issue in these cases.
Defendant's attorney of record and de-
fendant's expert witnesses are the same in
these cases as in Loesch.
9
damage caused by the dams in question
would, in effect, amount to a taking of
plaintiff's land entitling them to just
compensation. 4/
These actions were tried by the court
during the months of July, August and
September 1983. The court has carefully
considered the testimony and exhibits
introduced in evidence during trial, as
well as the post-trial submissions and
oral argument of counsel, and issues
this opinion setting forth its findings
of fact and conclusions of law. For rea~
sons set forth in the following opinion,
the court concludes that plaintiffs are
not entitled to recover on their claims.
I
Plaintiffs in these cases are owners
of land along both banks of the Ohio
4/ The trial record in these cases was vo-
luminous encompassing over 10,000 pages of
testimony and over 1300 exhibits. The court
heard testimony from 85 witnesses for the plain-
tiffs and 10 witnesses for defendant.
10
River and its tributaries. For a more
detailed discussion of the evolution
of the Ohio River than is found in
this opinion see Loesch v. United
States, supra. The Ohio River itself
is 981 miles long and navigable for.
its entire length. It has always been
well suited as a thoroughfare for the
transportation of goods and it has
been used as such for decades.
From a geology point of view, the
Ohio River is considered an alluvial
river in that its soil structure and
flow pattern are such that its banks
are constantly eroding, the eroded ma-
terial is transported downstream, and
eventually this matter is deposited as
sediment. However, there are portions
of the Ohio River banks, which are
colluvial in nature, i.e. covered with
rock and rock debris, or composed of
bedrock where the erosion impact of
a
the river is diminished by the more re-
sistant surfaces. However, such re-
sistant banks can create more meander in
the river by diverting the currents to-
ward opposite alluvial banks which will
erode. The flow of the river will also
act to more severely erode the outside
of the bends in the river where the flow
velocity is greater.
The Ohio River has for centuries been
a very dynamic river. Erosion of its
banks caused by the river's own erosive
forces has created constant change on
the river since its origins. The forces
of the river's flow, which varies with
precipitation in its watershed, acts to
erode some banks, deposit sediment on
others in a healing process, and in some
instances has no effect on more stable
banks. Erosion on a river of this magni-
tude with its unregulated flow is not a
new phenomenon.
12 —
In ascertaining the specific cause
of erosion, it is without question
that many variables must be studied.
Variations in precipitation within the
river's watershed will determine both
the volume of the river's discharge
and the velocity of the fiow. It is
uncontradicted that during periods of
heavy precipitation floods occur.
These floods, which increase the ve-
locity of the river flow as well as
raise the water level, Clearly cause
substantial riverbank erosion. Pre-
cipitation itself can affect bank con-
ditions and contribute to erosion
damage. Land use along riverbanks in-
cluding farming, mining, and building
of homes, with their associated in-
creased use of water and the need for
drainage, can also cause and/or add to
erosion of riverbanks. The existence
of certain soil or rock structures
cme
‘3
either natural or man-made on the river-
banks can either contribute to or hinder
erosion damage. Additionally, the con-
struction and operation of artifical
structures on rivers, such as dams can,
under some circumstances, alter the
river's natural flow pattern, sediment
propensities, etc., to the extent that
riverbank erosion occurs where it would
not have occurred naturally. In any
event, it is clear that in order to de-
termine the cause(s) of erosion many
factors including climate, soil charac-
teristics at a particular site, river
site location, land use and many other
mechanisms must be considered.
As stated above, the Ohio River has
been historically utilized as a means to
transport goods throughout its portion
of the midwest. As the boats which
traveled the Ohio River increased in
size and tonage, steps had to be taken
vee
14
to deepen the river channel. The use
of a system of locks and dams to in-
crease the depth of the channel began
in the late 1800's. The series Of locks
ana dams along the Ohio River has been
constantly modernized to: 1) keep up
with the increasing size of vessels on
the river and 2) to ensure that the
increased traffic on the river would
move up and down the river as guickly
as possible.
This modernization effort included
the construction of 49 low-lift dams
on the Ohio River. Said construction
was completed in 1929. However, as
river vessels increased in size and
river traffic increased incredibly the
low-lift dams became inadequate and
often caused delay. See Loesch v.
United States, Supra, 227 Ct.Cl. at
38, 645 F.2d at 910. In Order to al-
leviate the problems created by the
———ee
15
outdated low-lift dams, a modernization
program was undertaken in 1954. Under
this program 19 high-lift locks and dams
were to be constructed to replace the
existing low-lift dams on the Ohio
River. Said dams were constructed under
the authority of the River and Harbor
Act of March 3, 1909, 35 Stat. 817. Id.
227 Ct.Cl. at 34, 645 F.2d at 911. See,
infra note 39.
As of the time of trial in this case,
18 of the 19 high-lift dams had been
constructed and were operational. The
benefit to navigation of these new dams
was that they were fewer in number (19
as compared to 49) and they had larger
locks thus eliminating the time-consum-
ing and costly lockages necessitated by
the greater number of low-lift dams.
Five of these high-lift dams are involv-
ed in this litigation. (See supra note
2.) These five dams, beginning upstream
_-_ °° —3momeer—_—
16
and working down, are: The Meldahl
Locks and Dam, the Markland Locks and
Dam, the McAlpine Locks and Dam, the
Cannelton Locks and Dam, and the
Newburgh Locks and Dam.
Meldahl Dam is located on the Ohio
River at river mile 436.2, that is,
436.2 river miles below Pittsburgh,
Pennsylvania. Construction on this dam
and associated locks began in 1959 and
was completed in 1964. The pool was
hen raised behind the dam until it
reached its normal pool elevation of
485 feet mean sea level (m.s.1l.) on
March 4, 1965. Meldahl Dam and its pool
replaced four low-lift dams (Nos.31,32,
33 and 34). The pool created by this
dam covers 95.2 river miles and ends
upstream at the base of the Greenup
Locks and Dam. Meldahl Dam was at issue
in Loesch v. United States, supra.
At the time of trial, 6 plaintiffs
7
17
owned land adjacent to the Ohio River
and/or on its tributaries within the
Meldahl pool. The impoundment of the
Ohio River by the Meldahl Dam raised the
river 9.5 feet above the level of the
pool created by old dam number 32. Two
of the six plaintiffs with property lo-
cated on the Meldahl pool were within
the 9.5 foot pool rise area (Charles
Leedy and Hobart Rayburn). The Meldahl
pool raised the water level 24 feet
above the old water level created by old
dam 34. The property of one plaintiff on
the Meldahl pool incurred this 24 foot
rise (Harry Cline, Sr.). Three plain-
tiffs had properties which were pre-
viously adjacent to the pool created by
old dam 35 (David Allen, Harry Cline,
Jr. and Elmer Lee Jones). The Meldahl
pool raised the water level in this area
29.6 feet. The court notes that at the
area of the pool created by old dam 3l,
NIA iii sta
18
the pool rise was only 2 feet. The
Meldahl dam is operated to maintain a
9-foot channel. Flowage easements, made
necessary by his project, were obtained
by the Corps by purchase or condemna-
tion from riparian landowners during
the period 1961-1963.2/
Markland Dam is located on the Ohio
River at river mile 531.5. It is 95.3
miles downstream from the Meldahl Dam.
Construction of this dam commenced in
1956 and the pool elevation behind the
dam reached its normal pool level of
455 feet m.s.l. in January 1963.
5/ "These flowage easements in general gave
the United States Army Corps of Engineers (the
Corps) the perpetual right to permanently and/
or occasionally overflow, flood and submerge
riparian fast lands, i.e., lands above the
ordinary high water mark (OHWM), above-stated
elevations. These flowage easements also
gave the Corps the continuing right to clear
and remove, below stated elevations, timber,
brush, debris and natural obstructions which
in the opinion of the Corps may be detrimental
to the dam projects." [Loesch v. United
States, 227 Ct. Cl. 34, 40 n. 6, 645 F.2d
905, 9ll n. 6 (1981).]
19
Markland Dam replaced 5 low-lift dams
(Nos. 35,36,37,38 and 39). Markland Dam
was not at issue in Loesch v. United
States, supra.
At time of trial, 12 plaintiffs owned
land adjacent to the Ohio River and/or
on its tributaries within the Meldahl
pool. After the pool level reached 455
feet m.s.l. (its normal level), it had
in fact decreased the pool four-tenths
of a foot in the area of the old pool
created by former dam 35. Two of the 12
plaintiffs in the Meldahl pool region
were in this area in which there was
actually a pool reduction (Charles E.
Keller and Arthur Kruger). Two of the 12
plaintiffs own property where the old
pool created by Dam 36 was located
(Henry Rudd and George Nienaber). In
this area there was a 6-foot pool level
increase. One plaintiff owned property
where the pool created by old dam 37
a
20
used to be located (City of Covington).
There was a 13.9 foot rise in the water
level created by the impoundment of
water by the Meldahl dam in this area.
Six of the 12 plaintiffs with property
on the Meldahl pool experienced a pool
level increase of 29 feet at the loca-
tion of their land (River Ridge Park,
Inc., John Rolsen, Boone County,
Kentucky, John Crowe, Louis Hemer, and
Thurman Owens). Such an increase in the
pool level occurred in the area of the
pool of old dam 39. The property of
plaintiff Richard Chamblee is located
on the opposite side of a road from an
Ohio River tributary which empties into
the Markland pool. Therefore, he has no
property fronting the Ohio River or a
tributary and his property incurred no
pool rise. Markland dam like Meldahl
and the other high-lift dams, is oper-
ated in order to maintain a 9-foot
21
channel. Also, as in the case of the
Meldahl pool, the Corps secured ease-
ments, attendant to the Markland pro-
ject, either by purchase or condemnation
from the riparien owners where it was
found necessary to acquire them. (See
supra note 5).
The McAlpine Dam is located at river
mile 604.4 near Louisville, Kentucky.
The McAlpine Dam and associated locks
were built on the same site as old dam
41. It is essentially a modernization of
that old dam and lock system. Construc-
tion of the McAlpine Dam and Locks pro-
ject began in 1958 and was completed in
1965. The installation of the McAlpine
Dam did not alter the normal pool level
previously maintained by old dam 41.
The normal water level over the approxi-
mately 75-mile long pool has been 420
feet m.s.1l. since 1927 when the pool was
raised to that level behind old Dam 41.
EE
22
The McAlpine pool ends upstream at the
base of the Markland Dam previously
discussed. McAlpine Dam was not at
issue in Loesch v. United States,
Supra.
At time of trial, seven plaintiffs
owned tracts of land adjacent to the
McAlpine pool on the Ohio River:
Malcolm Carraco, John & Phillip
Campbell, Taylor Property, Inc., John
Taylor, Sr., John Taylor, Jr., Bruce
Lorch, and George Egger. Due to the
fact that the McAlpine Dam merely re-
placed a previous dam which maintained
the identical pool level none of pro-
perties owned by these seven plaintiffs
incurred an increase in water level on
its banks. Additionally, the absence of
a pool level rise made acquisition of
new flowage easements unnecessary.
Cannelton Dam is located at river
mile 720.8 on the Ohio River which
23
places it 3 miles upstream from Cannel-
ton, Indiana. Construction on this pro-
ject began in 1962 and was completed in
1974. The normal pool elevation of 383
feet m.s.1l. was permanently reached on
August 17, 1972. The pool created by the
Cannelton dam is the largest of all the
high-lift dam pools covering approxi-
mately 114 miles. The pool terminates
below the McAlpine Dam near Louisville,
Kentucky. The installation of the
Cannelton Dam and Locks replaced com-
pletely three low-lift dams (nos. 43, 44
and 45), as well as replacing a portion
of the pool created by old dam 46.
Cannelton Dam was at issue in Loesch v.
United States, supra.
At the time of trial, 54 plaintiffs
owned property adjacent to the Ohio
River and/or on its tributaries in the
area of the Cannelton pool. When the
Cannelton pool reached its full normal
24
level of 383 feet m.s.1l. it did not in-
crease the water level in the are of
the pool of old dam 43. This area with
no pool level increase comprises about
20 percent of the total Cannelton pool
area. Therefore, the 8 plaintiffs, who
own property in the area formerly
covered by the pool of old dam 43,
which is the upstream area of the
Cannelton pool, experienced no pool
level increase (the heirs of Howard B.
Marrs, Dr. Ben A. Reid, Gilbert and
6/
Helen Moore,— Harold Cummingham, Ed
and Lillian Knear, Mackey and Mary Jane
Knear, City of West Point, Kentucky,
and Benjamin and Helen Perchik).
6/ On February 19, 1985, the court ap-
proved plaintiff's motion to substitute the
heirs of Howard B. Marrs (15) who initially
filed his petition (Docket No. 161-78), on
April 14, 1978. Howard B. Marrs died before
trial thus necessitating the substitution.
On October 16, 1984, plaintiff Dr. Ben A.
Reid, Sr. was substituted for plaintiffs
Gilbert and Helen Moore, Dr. Reid having
purchased the land tract in issue.
25
Fifteen c£ the plaintiffs with property
on the Cannelton pool, or on tributaries
which empty into it, experienced a pool
elevation of 9 feet (Chester Klinstiver,
C.H. Withers, Avabelle Baskett, Nettie
King, Gilbert Cannon, Earl Barks, Roy
Sonner, Carl Marshall, William Gerdon,
Carl Stauth, Walter Hollis, N.A. Popham,
Dorothy Cole, Hazel Edgerten, and John
Bell). The property of said plaintiffs
was located in the area where the pool
of old dam 44 was previously located.
In the stretch of the Ohio River where
the pool of old dam 45 used to exist,
the Cannelton Dam raised the water level
by 16 feet. Twenty-three plaintiffs own
property adjacent to the Ohio River and/
or on its tributaries in this area in
which the 16-foot pool rise occurred
(Bayward Cole, Earl Mangin, Wallace
Mangin, Charlotte Simonson, N.A. Popham,
William Schrader, James Cole, Margarette
26
Heron, Edith Haynes, Lorena Richardson,
Ora Shacklette, Dorothy Stephenson
Krutz, Mary Buecher, Marvin Bruington,
Edward Goss, the Pike Heirs, Michael
Popham, Clara Elder, Gary Johnson,
David Alexander, Emmett Terry, Herman
Williams, and Harold Hagman, Sr.).
Eight of plaintiffs own property on the
portion of the Cannelton pool where
the impoundment of old dam 46 used to
be (Hendry Acres, Inc., Harold Hagman,
Jr., Francis Hagman, Alvin Shearn,
Rayburn McGee, Elmer Cooper, Southern
Indiana Rural Electric Coop, Inc., and
Charles Lutgring). The banks of these
properties experienced a pool level
elevation of 25 feet
The Cannelton Dam was constructed
with the capacity to provide for a 12
foot channel. However, the record
indicates that, at all times material
herein, the dam has been operated to
27
maintain a 9-foot channetl with a normal
pool level of 383 feet m.s.l. Flowage
easements necessitated by the Cannelton
dam project were obtained by the Corps
by purchase or condemnation from the
riparian landowners whose property re-
quired such an easement during the
period 1964 - 1967.
Newburgh Dam was constructed on the
Ohio River at reiver mile 776.1 which
is approximately 2 miles upstream from
Newburgh, Indiana. The Newburgh Locks
and Dam project replaced two low-iift
dams (nos. 46 ard 47). Construction on
this project began in 1965 and was com-
pleted and dedicated on October 25,
1975. The normal pool level of 358 feet
m.s.l. was achieved in January of 1975.
The Newburgh pool is 55.4 miles long
and ends upstream at the base of the
Cannelton Dam. Newburgh Dam is the
furthest downstream project involved in
28
litigation. The Newburgh Dam was at
issue in Loesch v. United States,
Supra.
At the time of trial, there were
three plaintiffs with property located
adjacent to the Ohio River on the
Newburgh Dam pool (Southern Indiana
Rural Electric Coop., Inc., Joseph
Nelson, and Martin Winkler). All
piaintif<s were located in the area
where the pool of old dam 46 used to
sie. When the impoundment behind the
gn pool reached its normal level
of 358 feet m.s.l. it did not increase
tne pool elevation formerly establish-
ead by old dam 46. Therefore, none of
‘
tne properties of these three plain-
ffs incurred a pool rise and it
was unnecessary for the Corps to ac-
guire flowage easements from them in
Order to construct the Newburgh Dam.
a a LEED AIEEE MN ry a
——_——_—<- alll
29
The network of high-lift dams was
installed solely as a navigational aid.
The purpose of these dams is to maintain
a minimum channel depth (9 feet) which
allows the large tow boats and their
barges to utilize the river, even in
periods of low natural flow. These high-
lift dams dams were not designed to
function as flood control devices by
storing excess flow like a reservoir.
Loesch v. United States, supra, 227 Ct.
Cl. at 41, 645 F.2d at 912. In fact,
there are no flood control dams on the
Ohio River itself though there are
several such dams on the tributaries of
the Ohio River.
In simplified terms, the high-lift
dams maintain a consistent channel depth
by increasing or decreasing the opening
of their gates when necessary. For
example, during periods of low flow in
the river the gates are closed or opened
IIRun TI ee
30
very little to increase the water
level, but as the flow of the Ohio
River increases the gates are opened
to the extent necessary to maintain a
consistent channel depth. During
flood conditions when the natural
river flow is at its maximum, the
gates of the high-lift dams are fully
opened. At that point the dams exert
little or no influence on the river
which is essentially allowed to
flow in its natural state. L/ The
7/ The flow rates necessary to require
the complete opening of the high-lift dam
gates varies between the different dams at
issue in this case due to the variations
of the toal square foot area of the gates
of the different dams. Therefore, when the
flow is 364,000 cubic feet per second (cfs),
the Meldahl gates are completely open. The
other flows which warrent the complete
opening of the gates of the various dams
are as follows: Markland Dam, 415,000 cfs;
McAlpine Dam, 227,000 cfs; Cannelton Dam
328,000 cfs; Newburgh Dam 200,000 cfs.
The fact that ic requires various flow
rates to warrant completely opening the
gates of the different dams explains why
specific dams will be operating to main-
31
record clearly indicates that it was the
excepticnal year in which two or more
high-flow periods did not occur See
also Loesch v. United States, supra, 227
Ct. Cl. at 41-42, 645 £.2d at 912.
Once the high flows or floods sub-
sided the high-lift dam gates would be
manipulated so that they exerted control
over the river to maintain a consistent
channel depth. As was discussed earlier,
the five high-lift dams at issue here
raised the normal pool level in some
7/ Cont'd
tain their normal pool while others will have
their gates completely open. For example when
the flow in the river is at 227,000 cubic feet
per second the McAlpine Dam gates are at a posi-
tion set for open river conditions. However, at
the same time the Markland and Cannelton Dams on
the upstream and downstream ends of the McAlpine
pool, respectively, will be continuing to
function to maintain their normal pool during
a flow rate of 227,000 cfs.
The court concludes that these necessary
variations in the operation of the gates of the
different dams also explains why there were often
more fluctuations in the pool level at the upper
end of certain dam pools. These fluctuations
32
areas above the old levels establish-
ed by the low-lift dams. With such a
new higher normal pool level, there
was less of a fluctuation from flood
stage level to normal pool when the
high flows receded. This factor can
serve to reduce the erosive effects
7/ Cont'd
were caused by the need to open the gates of
the upstream dam, e.g., McAlpine, while the
downstream dam, i.e., Cannelton Dam was con-
tinuing to maintain a constant pool level.
Therefore, as the upstream dam released more
water the pool level would increase in the
downstream pool area until it became
necessary for the downstream dam to adjust
to the increased flow. However, the court
is persuaded by the record in this case
that such fluctuations in pool level at the
upstream ends of the various pools did not
cause the erosion at issue.
Related to these upper pool variations,
plaintiffs' experts presented testimony on
"back-water curves". This testimony was
less than clear. After reviewing said
testimony in the context of the record
as a whole the court is not pursuaded that
the back-water curves utililzed by the
plaintiffs demonstrated any cause and effect
relationship between operation of the high-
lift dams and the erosion damage on plain-
tiffs’ riverbanks.
33
of receding water levels, called "draw-
down." (See infra note 32.) The Court
‘also notes that during low and normal
flow stages the high-lift dams can also
serve to reduce erosion caused by the
naturel erosive forces of river velocity.
See Loesch v. United States, supra, 227
Ct. Cl. at 42, 645 7.24 at 9iz-13.
The Court of Claims, in Loesch v.
United States, supra, concluded that
"the construction and operation of high-
lift dams do not cause floods, or in-
crease the number of floods, or affect
flood peaks and time intervals, or in-
crease the effect of flood events." Id.
227 Ct. Cl. at 42, 645 F.2d at 913. After
a review of the record in this case, the
court finds that plaintiff introduced
no new evidence to contradict this find-
ing which was supported by an extensive
study by the University of Cincinnati
which found no correlation between the
34
installation of the high-lift dams and
the frequency of floods. 2/
II
There can be no question tht the
Federal government has the authority
to improve navigable waters in the
interest of navigation. See United
States v. Kansas City Ins. Co. 339
U.S. 799, 804 (1950); United States v.
Chandler-Dunbar Water Power Co., 229
U.S. 53, 62-63 (1913). However, it is
also settled law that in making im-
provements on navigable waters if
damage results to privately-owned
land above the ordinary high-water
8/ The court notes that many of its
findings in this case are similar or identi-
cal to those made in Loesch v. United States,
supra. The similarity between the findings
should not be considered unusual considering
the fact that the same stretch of river,
three of the same dams, and properties with
similar riverbank composition are at issue
in these cases. The record in these cases
indicates that neither the dams nor the
river have changed appreciably since the
Loesch decision.
35
mark (OHWM)2/ the government is then lia-
ble, on the theory of a fifth amendment
taking. See United States v. Kansas City
Ins. Co., supra, 339 U.S. at 805-06, 808
n. 7; United States v. Cress, 243 U.S.
316, 320-21, 326-29 (1917); Goose Creek
Hunting Club, Inc. v. United States, 207
Gee Cais 323, 33h, 518 P.2d 579, 383
(1975). See also Barnes v. United States,
210 Ct. Cl. 467, 474-76, 538 F.2d 865,
870-71 (1976).
If governmental action raises the
level of navigable waters, not only must
/
: 9/ -The ordinary high-water mark (OHWM) is
the point which marks the limit of the naviga-
ble stream bed. See United States v. Kansas
City Ins. Co., 339 U.S. 700, 805 (1950). The
United States Supreme Court stated in pertinent
part in United States v. Willow Creek Power
Co., 324 U.S. 499, 509 (1945):
"High water mark bounds the bed of the river.
Lands above it are fast lands and to flood them
is a taking for which compensation must be paid.
* * * Lands below that level are subject always
to a dominant servitude in the interests of
navigation and its exercise calls for no compen-
sation."
;
36
it pay for the area above the OHWM
which it floods, but it also must pay
for any erosion or washing away of land
above the new water level which is
directly or proximately caused by the
governmental act. See United States
v. Dickinson, 331 U.S. 745, 750,
(1947); Stockton v. United States,
214 Ct. Cl. 506, 513-15 (1977). How-
ever, absent the requisite showing that
governmental action was the proximate
and direct cause of the erosion
damage, the government cannot be
held liable for a fifth amendment
taking. See Rhoads v. United States,
6 Cl. Ct. 278, 279 (1984); Loesch v.
United States, supra, 227 Ct. Cl.
at 43, 645 F.2d at 913; Coates v.
United States, 124 Ct. Cl. 806, 81l-
813, 110 F.Supp. 471, 474-75 (1953);
Yazel v. United States, 118 Ct. Cl.
59, 71-72, 93 F.Supp. 1000, 1003.
37
See also Sanguinetti v. United States,
264 U.S. 146, 149-50 (1924).
A.
The issue of the cause of the erosion
complained of in this case is not legal
it is factual. Loesch v. United States,
supra, 227 Ct. Cl. at 43, 645 F.2d at
913. See also Rhoads v. United States,
supra, 6 Cl. Ct. at 280. The issue
properly phrased is whether the con-
struction and/or operation of the Ohio
River high-lift dams relevant to this
case were the direct and proximate cause
of the erosion which has and is taking
place on some of the plaintiffs' pro-
perties either adjacent to the Ohio
River and/or on its tributaries.
Plaintiffs contend that when the
high-lift dams increased the elevation
of the normal water level in the vicini-
ty of their riverbank properties the
erosion of their banks drastically in-
38
creased from the top to the bottom of
said banks. Plaintiffs maintain that
the higher water levels permitted wind
and vessel generated waves to attack
their banks at higher levels than was
the case when the low-lift dams were
0/
in place.+2 In this regard, the court
notes that the water level was not
raised by the high-lift dams in the
vicinity of the lands of about 20
plaintiffs in this action, but yet
there was and is erosion occurring on
their properties.
Plaintiffs' primary contention is
that wave action is the mechanism or
cause of all of the erosion on their
properties. Plaintiffs also imply
10/ Plaintiffs' claim for damages must
be restricted to the land above the flowage
easements taken, if any were indeed taken
on their land. Their claim for damages
must be from the new OHWM (the upper limit
of the flowage easements taken) and up.
See Loesch v. United States, supra, 227 Ct.
Cl. at 43-44 n. 7, 645 F.2d at 913-14 n. 7.
Coty;
39
that the increase in water elevation it-
self aides and exasperates the erosion
caused by waves. Plaintiffs argue that
the increased pool levels acted to
soften the banks making them more sus-
ceptible to wave erosion. The record
indicates, to the contrary, that an in-
crease in the elevation of a pool to a
new essentially constant level provides
pressure on the face of the bank and
actually more stability. In any event,
the burden of proof in this case to show
that the alleged wave action is the dir-
ect and proximate cause of the erosion
damage complained of rests on the plain-
tiffs and not on the defendant. In other
words, plaintiffs must establish that
a taking has indeed occurred which
warrants the award of just compensation
under the fifth amendment. See Loesch
v. United States, supra, 227 Ct. Cl. at
44, 645 F.2d at 914 and cases cited
40
therein.
During the trial in these consoli-
dated cases, many of the plaintiff
landowners testified. From their
testimony it was clear that erosion,
in varying degrees, was occurring on
most of their riverbanks. Defendant
admits that on most of the properties
in issue erosion to a greater or
lesser extent is occurring. How-
ever, “proof of damage alone does not
necessarily prove a taking." Yazel
v. United States, supra, 118 Ct. Cl.
at 72, 93 F.Supp. at 1003. Every one
of the plaintiffs who chose to give an
Opinion as to the causation of the
erosion at issue stated or implied
that erosion on their riverbanks was
not a probiem until after the high-
lift dams were installed and the pool
levels were raised. It followed, in
their reasoning, that the high-lift
41
dams must be the cause of the erosion.
This type of reasoning in arriving
at a causative effect is referred to as
post hoc ergo propter hoc (after this
therefore on account of this). Such rea-
soning was rejected as unpersuasive in
Loesch v. United States, supra, 227 Ct.
Cl. at 45, 645 F.2d at 914. See also
Rhodes v. United States, supra, 6 Cl.
Ct. at 280; Yazel v. United States,
supra, 118 Ct. Cl. at 70-73, 93 F. Supp.
at 1002-04. The court in Loesch found
that the plaintiffs were basically not
attentive to their riverbanks prior to
the construction of the high-lift dams
and it was not until after the instal-
lation of the dams that they began to
anticipate erosion. In these cases, the
plaintiffs sought to demonstrate that
they were indeed attentive to their
riverbanks, in an « “ort to counter the
court's finding in Loesch. Accepting
42
their testimony at *7ce value does not
prove much, for as stated in Volentine
and Littleton v. United States, 144 Ct.
Cl. 723, 726, 169 F.Supp. 263-65
(1959): “Post hoc ergo propter hoc is
a
neither good logic nor good law.'
The facts in Loesch v. United States,
supra, 227 Ct. Cl. at 45 n. 8, 645
F.2d at 914 n. 8, and the facts in the
cases at bar demonstrated that erosion
had been occurring on the litigant's
riverbanks for decades prior to the
1l/ The court recognizes that not all of
the plaintiffs who testified relied solely on
this type of generalized reasoning and the
court will address their other opinions on
causation infra. However, almost all of the
plaintiffs implied such reasoning in their
testimony and most used it as the basis for
their ultimate conclusion that the high-lift
dams were the cause of the erosion damage to
their riverbanks. In these cases the court
is of the view that plaintiffs’ attentive-
ness to the banks not only increased drama-
tically after the installation of the high-
lift dams, but in some cases such attention
increased due to the publicity surrounding
the Loesch v. United States litigation in
and about the Ohio River regions.
43
construction of the high-lift dams. The
court in these cases finds such a gener-
alized post hoc ergo propter hoc ap-
proach to establishing the cause of ero-
sion most unpersuasive.
In addition to utilizing a general-
ized post hoc ergo propter hoc approach
to ascertain the cause of erosion on
their riverbanks, many of the plaintiffs
offered other opinions as to causation
as well. Many of the plaintiffs who gave
another opinion concluded that the com-
bination of waves generated by winds and
tow boats and the raising of the water
level, which: (i) provided more water
to soften the banks and make them sus-
ceptible to wave erosion and (2) allowed
the waves to strike the banks at higher
elevations, caused all of the erosion on
12/
their banks.— They were of the view
12/ When some of the plaintiffs referred to
——EEEEEEEEE—
44
that absent the pool level increases
the erosion damage their banks have
incurreda would not have occurred.
Plaintiffs render other cau-
sation opinions as well. Some felt
the cutting of the trees by the Corps
in the easement area killed the trees
which resulted in less stability for
the banks. Others felt that the con-
stant fluctuation in the pool levels
as indicated by the hydrographs
caused instability in their banks.
They concluded that such pool level
fluctuations were caused by the
Corps’ manipulation of the high-lift
12/ Cont'd
waves striking their riverbanks at higher
elevations it was apparent to the Court that
they were referring to the large storm gen-
erated waves which strike the banks during
flood conditions. The damage created by
such waves was illustrated graphically by
the movies of winter storms presented by
defendant's experts. Such waves are caused
by storms and flood conditions and the dam-
age which results therefrom is not proxi-
mately caused by the high-lift dams.
45
dams. Other plaintiffs cited heavy rains
and flooding in the winter and spring as
major contributing factors to erosion
damage on their banks.+2/Clearly, heavy
rains are not caused by the high-lift
dams, and the court has previously con-
cluded that said dams effect neither the
magnitude nor frequency of flooding.
In general the court found most of
the plaintiffs who testified to be quite
credible, God-fearing, honest individu-
als. The Court concurs with the view of
one of defendant's experts who found the
13/ In addition to the damage caused by the
velocity force of floods, some plaintiffs cited
the detrimental effect to their banks caused by
the quick recession of flood stage waters back
to the normal pool stage. This receding of flood
waters down the banks to normal pool level is
referred to as "drawdown" which will be discuss-
ed infra in note 32. As the plaintiffs accu-
rately observed drawdown can have a substantial
impact on the stability of banks but it is in
no way related to the installation and/or ac-
tivity of the high lift dams. In fact, if any-
thing, the high-lift dams restricted the impact
of the drawdown mechanism. This restriction
was brought about by the fact that the high-lift
dams raised the normal pool levels so that after
a flood the drop down to normal level is less
46
landowners to be good observers. (Tr.
9091). However, erosion is a complex
phenomenon, especially in determining
its cause. Often there can be many
mechanisms at work producing erosion
either individually or in concert
with one another which adds to the
complexity of erosion activities.
Ascertaining the cause of such a com-
plex natural occurrence requires the
analysis of many variables and can-
not be reduced to simple answers.
Therefore, this is a case in which
the testimony of experts is particu-
13/ Cont'd.
severe and thus the impact is corresponding-
ly less significant.
Some plaintiffs also cited the damage
done to their property by barges striking
their banks or coming in too close to their
riverbanks. The fact that the raising of
the pools may have allowed the barges to
navigate closer to the shore does not mean
that the damage, caused by barges striking
the banks or passing too close, was directly
and proximately caused by the high-lift dams.
47
larly appropriate, given the fact that
that the court has been presented with
evidence of a highly technical ideas
involving geotechnical, hydrologic,
hydraulic, geological and climatic
matters. Loesch v. United States, supra,
227 Ct. Cl. at 45, 645 F.2d at 314. See
also Gisriel v. Uniroval, Inc., 517 F.2d
699, 702 (8th Cir. 1975).
Further support for the court's at-
tributing more weight to the testimony
and opinions of experts than to the
opinions of the landowners in this case
to determine the cause of the complex
phenomenon of erosion can be found in
the testimony of Wickliffe B. Hendry
(Hendzy) who testified on behalf of
Hendry Acres, Inc., (Docket No. 317-79L
(8)) a corporation which owns land adja-
cent to the Ohio River. At the time of
trial Hendry was a licensed engineer
with a Masters of Science Degree in
ae i i i
48
mechanical engineering. Other than
Speculating by utilizing a general
post hoc ergo propter hoc type ap-
proach, Hendry denied that he knew
what mechanism was causing erosion
along the Ohio River (Tr. 952). Other
than speculating that wave action may
be a potential cause, Hendry express-
ed a preference "to leave the techni-
cality of the mechanism to the ex-
perts.”" (Tr. 955). The court finds
that the preference of Mr. Hendry,
an expert in his own right, to leave
this causation issue primarily to the
experts is the proper approach to
adopt in these cases.
Given the fact that the sole issue
before the court is what caused the
erosion along the Ohio River and its
tributaries and the court's con-
clusion that the determination of
Said cause is one that requires the
|
49
aid of experts, the court has carefully
scrutinized the testimony of the experts
presented by both parties.
The first of two primary experts AS/
presented by plaintiffs was Eric D.
Loucks (Loucks). At the time Loucks
testified he was 25 years of age. Loucks
had his Bachelors of Science (B.S.) de-
gree in civil engineering but had not
yet completed his masters degree in
said area of study. Based upon taking
specific courses while studying for his
14/ Dr. Henry H. Gray (Gray) was an ad-
ditional expert called by plaintiffs. Gray had
a Master's degree and a Ph.D., presumably in
geology. He considered himself a stratigrapher
which is a geologist who principally studies
layered sedimentary rock. Gray was called by
plaintiffs to testify as to his knowledge con-
cerning stability problems on Highways 66 and
166 in the area of the Cannelton pool.
Gray had been requested by the Indiana State
Highway Department to determine whether bedrock
movements at specific locations along Highways
66 and 166 were causing the deterioration of
the roads. After examining the sites in 1968,
prior to the raising of the Cannelton pool,
Gray determined that bedrock movement was not
occurring. He kept no written records of his
Ee
50
B.S. in civil engineering, Loucks was
offered as an expert hydrologist.
Loucks taught some hydrology courses
at the University of Wisconsin at
Madison, Wisconsin.
During his testimony Loucks re-
cited a great deal of data concerning
the increase in the width of the
Ohio River based on comparisons of
1911-1914 river maps and more recent
post-high-lift dam river maps. Loucks
implied that the total increases in
14/ Cont'd
observations. Other than determining that
bedrock movement was not the cause of the
road problems, he admitted that he did not
try to determine the principal cause of the
landslides (Tr. 5187). However, plaintiffs
apparently called Gray to give an expert
opinion on the actual cause of the road
deterioration in the areas he observed.
Gray labeled the area he examined a
classic slide debris area. He stated that
landslides were occurring in 1968 and the
1983 landslide he observed at the same
site was recurring movement of the earlier
Slides (Tr. 5163). Though Gray denied
attempting to assign a principal cause to
51
the width of the Ohio River were attri-
butable to the construction of the dams
in question. However, it became ap-
parent to the court that Loucks‘ width
comparisons were flawed in that the
1911-1914 width data was based on low
river flow whereas the more recent data
was not. Therefore, though it is clear
that the high-lift dams did increase
the width of the Ohio River, the court
14/ Cont'd.
the landslides, he did intimate that perhaps
the raising of the water level in the Cannelton
pool, which raised the wacer on the riverbanks
at the highway sites, removed a portion of the
toe of the slope (base of the slope which serves
as the foundation for a bank in slide areas)
and allowed the slides to occur.
The court finds Gray's toe of the slope
opinion or theory unpersuasive. First, he
admitted he did not attempt to arrive at a
principal cause and was only asked by the High-
way Department to examine bedrock movement.
Second, he admitted that the amount of moisture
in a landslide area is crucial to determining
the propensity to slide but he did not examine
climate data at the time of the slides to
ascertain rainfall amounts. Third, the issue
in this case is whether the high-lift dams
caused the damage complained of. Gray testified
————
52
views Loucks' testimony concerning the
degree that the dams increased the
width of the river and the inferences
that may be drawn from such an increase
as having little value to the court
due to his flawed analysis. The court
notes that "opinion evidence is only
as good as the facts upon which it is
Loesch v. United States,supra,
227 Ct. Cl. at 46, 645 F.2d at 915.
Loucks also testified at length as
to the fluctuations in the levels of
the various river pools impounded by
14/ Cont'd.
that the highway area in issue had histori-
cally been a landslide area. There were
landslides in that area in 1968 which was
before the dam pool was elevated. This
shows a lack of correlation between the
Cannelton pool level rise and the landslides
cited. Finally, though the court found Gray
to be a credible and articulate witness, it
found his testimony to be very generalized
and hypothetical. Several of the opinions
he gave were based solely on his experience
without any data to support his theories.
The court attributes very little weight to
such theories or opinions.
53
the high-lift dams. Loucks read into
evidence many river gauge readings from
the various pools as printed in the
"Ohio River Bulletin." For the most
part Loucks attributed such fluctuations
in pool levels to manipulations, or a
lack thereof, of the high-lift dam gates
by the Corps. Loucks implied that the
fluctuations experienced in the late
1970's had not been experienced over
previous time spans.
The court does not question the
gauge readings or the fact that the pool
levels may have fluctuated to a degree.
However, Loucks admitted that he never
went behind these gauge readings to per-
haps determine why they were occurring.
Loucks, relying on one set of weather
data, also discounted the impact that
weather conditions may have had on the
peol level variances. The court is
convinced that the 1970's was indeed a
"
> - + co ~ay tr <7 ; Taatrhar ~*~
perioag Or excessively wet weathe Nn
h his -11rear "Ory? al XH oO 6} - an
tne Ohio River region. ne court con-
~— 1 ~ ha + “<7, ont on 7 5 > ~ 4-5 Ixy, ~ + - 7
S 4 Uudades t Lica 4 an y Comp iS te StuUucay OL poo i
i L 4
, + ot ae on an te Te ale | snc ,hNerTy =r > + rat 7 sr
wet cConal1ltlions into consilde LatviaQhie
Rina , ata horvy +
S week & ¥ , as State LA abdc VC , « le
*
Cc cr? . a an’ . 2 ie | ~ » ee Oe nd ,c ~>))} 1 3 Sr
LSSUE if Lillis Case ids CausatlOn.
T ~1) ~bca a > Oe ale on aT | \sm,IMm ~ + Y , > + ne 7
LOUCKS certainly documented that pool
2 i
Str | ,% ~ + — + ‘ ~ 7) »* y* md -'
LGSvewt cr iuec tuations occurred. rie aisoO
~ + + > | + + ry hear ’ ,rNY MmoOorr ~
testified that he observed in mov les,
wh+s eh > rma y+ + by Valet ote | + +h -
wnicn were part or tne record in these
i
="aAcac tr. ence » = _Yrra ey + or kh SY I
LCaoc Cv itd it. S UL —~ ee e-is 4144 i MoLiClI
, " . . . : :
Tea } =e ho AnureoYr Sankec my #hoa -
ing aiong the lower banks in the upper
7
1
Qu
r
oF
-
O
ct
Q
be
(D
O
@)
hk.
-
ke
O
ae
fu
/
ct
O
=
ey)
ct
@
ct
Q
fy
cS
WY
(D
Qu
ct
ni
cates he did not know wl
terracing on the lower banks (Tr.
6400-01).
4
56
engineering in 1940 and subsequently
received a master's degree in soil
mechanics and foundations in 1948.
Fuguay's work experience included
almost 30 years of service in the
Corps from which he retired in 1978.
His experience in the Corps and a
brief stint with a private engineer-
ing firm included participation in
projects all over the world. He
worked on airfields, railroads and
various types of dams. Fuquay spent
at least 9 years working for the
Pittsburgh District of the Corps
where he primarily worked on flood
control dams on the Ohio River tri-
butaries, but he did participate, at
least in part, in the design and con-
struction of the Hannibal high-lift
dam. The court acknowledges Fuquay's
expertise in the general area of
soil mechanics.
57
Duxing Fuquay's work stint with the
Pittsburgh District of the Corps he be-
came aware of bank erosion occurring be-
hind dams constructed by the Corps on
the Monongahela, Allegheny and Ohio
Rivers. Fuquay decided to study the
Maxwell pool on the Monongahela, to
develop a theory on the cause of the
bank erosion. The theory he developed
wes set out in a 1972 report, Fuquay
prepared, entitled "Bank Erosion on
Lower Velocity Streams.” This report was
submitted by Fuquay to the International
Commission On Irrigation and Drainage at
a Conference in Verna, Bulgaria in 1972.
Fuquay submitted this report as an in-
dividual and not as a representative of
the Corps of Engineers. It is clear to
the court that Fuquay reiied almost en-
tirely upon this report and his subse-
guent Ohio River observations to arrive
at his opinion on what caused the
58
15/
erosion in these cases. —
Basically, Fuquay theorized that
on streams or rivers with a bank ve-
locity of 1 meter (3 feet) per second,
if you raise the pool and no wave
action occurs, there will be no
erosion. However, if the pool is
raised, the banks become saturated
with water and waves either generated
by boats or wind strike the banks and
cause them to breakdown. Fuquay
theorized that the waves form benches
or terraces at the base of the banks.
15/ One of the formats for reports sub-
mitted at this conference was the critique of
each submitted report by a panel of experts.
The court notes that several individuals
submitted comments to Fuquay's report after
it was published. These comments focused on
the damage to banks caused by flooding. In
rebutting these comments, Fuquay noted that
his theory was only applicable to streams
with flow velocities of 1 meter per second.
Fuquay also admitted that flood water above
the ordinary high water mark can cause
enormous damage much of which is not associ-
ated with erosion. He, however, further
distinguished his report by limiting it to
rivers with ordinary high water marks which
>
é
59
These benches are made up of the soil
material from the banks which the waves
cause to erode off. As these benches
form, the remaining banks behind the
benches become steeper.
Fuquay initially developed this
theory in 1972. When he was asked by
the plaintiffs’ counsel to testify in
these cases he stated that he would not
do so until he determined if his theory
was indeed accurate. To ascertain the
accuracy of his theory for application
to the cases at bar, he examined the
pool on the Ohio River behind the
Hannibal high-lift dam. None of the
15/ Cont'd.
coincide with the top of the riverbank and with
water levels which follow a generally predict-
able pattern. These comments and rebuttals point
out: (1) that Fuquay's theory is not unanimously
embraced by all, and (2) that the limitations
placed on his theory make it very specific re-
quiring a great deal of analysis of a section of
river to ascertain whether or not the character-
istics of that section of river allow an accu-
rate application of his theory.
60
plaintiffs' properties at issue in
this case is on the Hannibal pool.
The Hannibal dam is located hundreds
of miles upstream from the closest
high-lift dam at issue in this case.
After examining the Hannibal pool,
Fuquay felt that his observations
made therein, for the most part
Supported his theory and he agreed
to testify. Other than reviewing
his 1972 report and observing the
Hannibal pool, the only other basis
of his opinions given during trial
was 2 days of observations on a
portion of the McAlpine and
Cannelton pools made while on board
a boat cruising these two pools.
The court found Fuquay to be an
intelligent, able, competent and
well-spoken witness. However, the
court finds that Fuquay's theory had
an insufficient factual foundation
61
for application to the properties at
issue in these cases. See Loesch v.
United States, supra, 227 Ct. Cl. at 46,
645 F.2d at 915; State of Washington v.
United States, 214 F.2d 33, 43 (9th Cir.
1954), cert. denied, 348 U.S. 862. In
developing his theory, it appears to the
court that Fuquay did not analyze all of
the potential causes for erosion and
eliminate each one systematically until
he arrived at the causative mechanism
which he presented in this case. Instead,
it appears that Fuquay based his theory
simply upon his observations along the
bank at the Maxwell pool without looking
any further. Therefore, the court
questions the accuracy of Fuquay's theo-
ry as applied to the properties in issue
in these cases based on his failure to
fully study the individual properties
in issue and the potential causes for
, 16
the erosion occuring thereon.+2/
62
Another factor which precludes the
court from attributing great weight
to Fugquay's testimony is his failure
to analyze the particular properties
of the plaintiffs in this case to
ascertain the cause(s) of the erosion
taking place thereon. Fuquay spent
16/ In addition to failing to completely
study other potential causes, there were other
important factors Fuquay discounted or ignored
in applying his theory and arriving at his
conclusion. He examined no meteorological
data concerning periods of heavy precipita-
tion. He also did not consult any hydrologi-
cal data which would include bank drainage
information. In the specific areas where he
developed his theory he discounted the fact
that: (1) there existed a stream flowing
parallel to the river just behind the river-
bank he utilized for test purposes; (2)
there were tons of coal refuse on top of the
riverbank in his study area; (3) dredging
had occurred in the study area just prior
to his examination of it which may have
caused part of the bank to fall into the
river; and (4) flooding had occurred shortly
before he made his observations. The court
considers all of these factors and data
critical to developing an accurate theory
on the causation of erosion.
In cross-examining one ot plaintiffs'
experts, Gray (see supra note 14), de-
fendant's counsel asked Gray about the
concept of a “multiple working hypothesis"
63
2 days on a boat in only the McAlpine
and Cannelton pools, simply observing
the banks. He did not actually set foot
on any of plaintiffs' properties. asl
16/ Cont'd.
(Tr. 5185-87). Gray conceded that a multiple
working hypothesis is a standard for rendering
a professional opinion. Essentially under the
multiple working hypothesis an expert hypothe-
sizes concerning possible causes for a given
phenomenon. Then the expert collects an assort-
ment of data. Based on said data the expert
then rules out the least possible and arrives
at the most possible or probable cause. Absent
such an analysis, Gray conceded that an expert
opinion would not meet the standards of his
profession (Tr. 5186). The court is of the
view that Fuquay's proffered opinion fails to
meet the multiple working hypothesis standard.
17/ In an effort to minimize the fact that
Fuquay did not visit and analyze the properties
of the individual plaintiffs, plaintiffs'
counsel consistently argued, and still does,
that water has similar properties anywhere in
the world and that soil is soil anywhere in the
world. The court assumes that plaintiffs'
counsel also relies on these general assertions
to support his use of and to add weight to
erosion reports from other rivers and bodies
of water which were relied on by plaintiffs at
trial.
Despite the fact that soil in one part of
the world may be similar to soil in another part
of the world, how the soil is situated within
the topography and how it is layered, along with
64
Fuquay did not analyze the river flow
velocities in the relevant areas to
determine whether or not they exceeded
the 1 meter per second velocity limi-
tation he placed on the applicability
of his erosion theory. Fuquay admitted
that stream velocity is a major cause
of bank erosion but he offered no evi-
dence of the velocity along the rele-
17/ Cont'd
a myriad of other factors oa a particular
site, including the general climate, will
play a role in how soil will react to out-
side pressures. An old adage advises that
each tract of land is unique.
Generalizations concerning the similari-
ties of soil and water do not account for the
various and complex causes of erosion which
may be acting in a given location. The vari-
ables which can exist in two different areas
warrant in these types of cases that specific
site analysis be performed in order to com-
pletely substantiate expert opinions and
conclusions. Therefore, the fact that soils
and water may be similar in different lo-
cations does not serve to replace the ne-
cessity in cases such as these for indi-
vidual site inspections if significant
weight is to be given to the opinions and
reports placed in evidence.
65
vant properties. He also admitted that
if the flow velocity exceeds 1 meter per
second then his theory does not apply.
He admitted that some of the properties
in the Cannelton pool did not exhibit
benching but were still eroding which
weighs against his theory. There are
also some areas in the pools at issue
which did not incur pool elevation in-
creases which seem to be necessary under
his theory. Fuquay also did not review
defendant's exhibits or the reports of
defendant's experts either in an effort
to refute defendant's erosion theories
or in an effort to support his own
theory. A8 For the most part, Fuquay
18/ The court notes that plaintiffs have
the burden of proving by a preponderance of the
evidence that the relevant high-lift dams are
in fact the direct and proximate cause of the
erosion damage on their riverbanks. See Loesch
v. United States, supra, 227 Ct. Cl. at 53, 645
F.2d at 920. It was not encumbent upon de-
fendant to prove that another cause(s) exists
for the erosion taking place.
66
reiileag on his own report and limited
opservations of the pro
—~
~
—
pnd
—
gnoring available and
relevant scientific and other data
ror the pertinent time period and
property locations.
Additionally, some of Fuquay's
testimony did not support plaintiffs
broad erosion causation position.
The issue in these cases is what
caused the erosion damage suffered
by plaintiffs on their riparian banks.
Plaintiffs maintain that all such
erosion is caused by the high-lift
dams. The issue tried in these
cases does not revolve around the
propriety of the ordinary high-water
mark (OHWM) as established by the
19/ "
Corps.— However, Fuquay expressed
19/ Though such an issue was not raised
by any of the plaintiffs during trial and it
was apparent to the court during trial that
the focus of plaintiffs' case was not the
~ ,
the opinion, on the basis of his theory
>f erosion, that the OHWM should have
been establisned higher up on the ba
than it was to take inte j Ount poo
level fluctuation and wave action.
iqua testified tnat an qa re above
er OHWM is caused by flooding
and is not defendant's responsibility,
i.e., was not the result of he con-
struction and operation of the high-/ift
dams. He stated that some of the ero-
sion complained of high on the river-
banks may have been caused by floods,
especially in the winter and spring (Tr.
7026). Plaintiffs on the other hand,
broadly contended that all of the ero-
19/ Cont'd.
propriety of the OHWM, plaintiffs in their
raised the issued ostensi-
post-trial brief
bly for the first time. Based on the fact
that their primary expert witness expressed
such an opinion, plaintiffs were essentially
required to raise the OHWM issue. The court
will address the issue in detail, infra.
.
b ry ¢ t —~ ~ car WN +-~hHo high.) i f+ Jame
aid th did not, at trial, question
the propriety of the OHWM directly.
refore, Fuquay' testi ny does not
Support plaintil Dr 1 @€]7] LOT!
Claim position.
In addition to conceding that some
of the bank erosion suffered by plain-
tiffs was caused by flood damage and
not by the high-lift dams, Fuquay's
. , m7 mtr ) . ’ lL ‘o an ¥ . a '
test LMOny aisV WeaKen»ne d } laint ® cS
y ‘ Yr - | ma TOY ., liv 2 T) \ | oe
erosiL,gen ¢ alms q nerdad LY + uquay ad
of could have been caused by ground
water seeping into the river from
plaintiff's property, a causativ
factor cited by defendant's experts.
He testified that a soils engineer
would be required to ascertain which
properties were so affected and which
were not. Neither Fuquay, himself,
nor plaintiffs made
area to ascertain
on the individual
—
oo
“+
—_
69
any effort in this
the cause of erosion
properties. Fuquay
theory
account for all the
plaintiffs
i
complained.
This further reduces the weight to be
attributed to his causation opinion.
Finally, other statements made by
Fuguay during his testimony do not
port plaintiffs'
is evident
theory of
that a portion of
positions. First, it
plaintiffs'
erosion causation encompassed
the theory that when the Corps cut down
many trees along the Ohio River banks
the result was the elimination of a
vital sourze of riverbank stability and
internal support. Fuquay testified
that the roots of cut trees will con-
tinue to hold a bank thus negating the
position taken by some of the plaintiffs.
Second,
Fuquay commented on a report
eee ea ee ne
70
transmitted to the United States House
of Representatives from the Secretary
of War in 1935. The report was pre-
pared by the Corps concerning the ad-
visability of dams on the Ohio River.
That report stated that erosion had
always existed along the lower Ohio
River and that the riverbanks in that
region were less stable. Fuquay stated
that the lower Ohio River includes the
dam pools at issue in this case. That
report provides evidence that erosion
along the relevant portions of the
Ohio River is not a new phenomenon.
The court notes that its position
in attributing little weight to the
testimony offered by Fuquay is cor-
roborated by an order issued by the
Court of Claims in Loesch v7. United
States, 227 Ct. Cl. 63 (1981). After
the trial judge had rendered his de-
cision in Loesch v. United States,
71
supra, 227 Ct. Cl. at 34, 645 F.2d at
905, the plaintiffs, who were landowners
along the Ohio River in approximately
the same location as some of the plain-
tiffs in this case and who were repre-
sented by the same counsel, moved the
appellate panel of the Court of Claims
to reopen proof and remand the case to
. the trial judge so that Fuguay's report,
"Bank Erosion on Lower Velocity Streams};
mentioned earlier, could be considered.
Loesch v. United States, supra, 227 Ct.
Cl. at 63. The Court of Claims denied
this motion finding that: (1) the report
was not an official report of the Corps,
and (2) the report was irrelevant.
The Court of Claims found the report
irrelevant based on the fact that it was
limited to streams with a bank velocity
of 3 feet per second whereas the portion
of the Ohio River in question often ex-
ceeded that velocity. Id. 227 Ct. Cl.
at 63. This court has found no evi-
dence which would indicate that the
flow velocity of the river has changed
the Loesch decision was rendered. To
the contrary, defendant established
second at which time most of the
destruction takes place. Therefore,
based on this court's findings that
fuquay’ s opinion was primarily
premised on his 1972 report, and the
Court of Claims ruling, cited above,
ct
hat said report was irrelevant in
almost a factually identical case, the
court finds the holding in Loesch v.
United States, supra, 227 Ct. Cl. at
63 supportive of its determination to
attribute little weight to Fuquay's
erosion causation opinion.
The approach taken by plaintiffs’
a3
primary expert, Fuguay, was generalized
and certainly lacking in the specific
research and analysis deemed necessary
to determine whether his theory was
applicable-to the particular riverbank
sites at issue in these cases. De-
fendant, on the other hand, engaged
several experts who, with the aid of
Corps personnel, conducted detailed and
exhaustive studies on each of plain-
tiffs' properties. Defendant's experts
considered many possible mechanisms
which could potentially cause the ero-
sion complained of, and arrived at the
specific case on each litigant's river-
bank(s). The thoroughness of the studies
performed and the scientific nature of
their methodology, and analysis, gave
defendant's experts a strong factual
basis for their ultimate conclusions.
Defendant's research team, which includ-
ed personnel of various specialties,
a
74
possessed a professionalism which gave
the court a sense of reliability, fair-
ness and a sincere interest in ascer-
taining the actual cause(s) of erosion
on each plaintiff's tract of land.
The court concludes that the studies
and resulting data and ultimate con-
clusions drawn therefrom by defendant's
experts are entitled to great weight
in determining the cause of the
erosion damage in these cases. The
ultimate conclusion of all of de-
fendant's experts was that the erosion
taking place on plaintiffs' riverbanks
along the Ohio River was not caused by
Or related to the construction and
Operation of the high-lift dams in
issue.
In presentation of its case de-
fendant utilized a number of expert
witnesses. The chief consulting ex-
perts relied upon by defendant were
<a
Dr. Stanley A. Schumm (Schumm), Dr.
Daryl B. Simons (Simons) and Dr. D.
Joseph Hagerty (Hagerty). a0!
Schumm obtained a Ph.D in geomor-
phology from Columbia University in 1955
and at the time of trial he was a pro-
fessor of geology at Colorado State Uni-
versity. Based on Schumm's qualifi-
cations, as stipulated to by plaintiffs,
and his prior experience of studying the
Ohio River for the Loesch v. United
20/ Defendant presented several other expert
witnesses in these cases. The experts not list-
ed above primarily testified concerning various
tests they conducted or data they collected and
interpreted which were used to support the
testimony of Schumm, Simons and Hagerty. The
court finds that all of defendnat's experts were
qualified to conduct their respective studies
and to render opinions regarding the results of
the various studies.
The court notes that Schumm and Hagerty were
all expert witnesses for defendant in Loesch v.
United States, supra, 227 Ct. Cl. at 49-53, 645
F.2d at 917019 where their qualifications were
fully set forth. The court finds that all three
possess the necessary qualifications to serve as
expert witness in these cases.
76
States, supra, case the court found
Schumm to be eminently qualified to
offer opinions concerning the evo-
lution and classification of the Ohio
River and the phenomenon of erosion
along the Ohio River.
In preparation for his testimony
in these cases Schumm visited the
riverbank sites of all plaintiffs
who continue to maintain claims re-
lating to the issue of erosion. shi
After visiting these sites and ob-
serving the potential causes of
erosion at each site, Schumm sub-
mitted a report concerning erosion
in the relevant areas of the Ohio
River. Said 1982 report utilized the
same general background material as
the 1977 report Schumm submitted in
21/ The only sice that Schumm did not |
visit was the property owned by Joel Deckard
on the Uniontown Dam pool. See, supra, aote
Ze
Loesch v. United States, supra, but he
updated the report to encompass hi
observations concerning tne specit
_ = = = de _o * ms rT
Stes At LS5SuUe ihn CTnese Cases. n
~ + - ~L = ~ 1 + + ‘
port took into consideration many
Sa 2 2. 4 ee eye
oplalintitftis properties.
, .
In general, Schumm ciassifiea
Ohio River as a meandering river,
a river with a sediment compositi
which is such that the river chan
will change position over time wl
— le =| ~ > | +’ rr Ac
constantly fluctuating patn. As
c
(D
9)
meandering river, Schum
the Ohio River has always had ero
along its banks. A great deai ot
erosion occurs on the outside ot
in the river where tne riow veloc
tend to be greatest. It was Schu
opinion that the meandering chara
of the Ohio River was not altered
(in
18)
ry ~ ~o C) y
i Ss G a BEL eH i
OCOnlo River i
that erosion
. ) = os > 7
OC Mie a See I ae
rr > | 4
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i C Ola MLLOL
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ee es es ae ie
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Y 4
4 4 aa ed ] c —
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‘ = ~~ oS — ~— ~ .
11 ,
oe siUlil ca
Caus > Be ec
plaintiffs!
ree 4sailid +
jected the t
complainea o
the installa
correctly po
occurring on
no pool rais
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-
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the court by Sc
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.- aon
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rosion
raising
ms
after
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C10n of the dams. Schumm
inted out that €rosion is
several sites a
2
© took place. =
t which
There-
3
fore, he felt a generalized theory that
the erosion complained of was caused by
increasing the level of the pools must
be rejected.
Schumm did find that rain water
flowing over the surface of a bank can
cause some erosion. He also testified
that ice flows on the river in the
winter can cause damage to the banks.
Schumm also cited the erosive forces of
the flow of the river itself as wearing
on the bank and causing erosion es-
pecially on the sites located on the
a/
outside bend of the river. 23 Based
22/ There are at least 20 plaintiffs who own
riparian property which incurred no pool raise
after the installation of the high-lift dams.
Sites which encountered no pool raise can be
found on Markland, McAlpine, Cannelton and New-
burgh pools. Despite the lack of a pool raise
almost all 20 of the sites suffered substantial
erosion damage.
23/ Schumm cited 22 sites owned by plain-
tiffs in this case which are located on the out-
side or near the approach of a bend where the
maximum erosive forces of the river occur.
8 0
on his observations on the different
properties, Schumm discounted the im-
pact that wave action had on the banks.
Schumm, relying on his geomorphic back-
round, determined what a bank eroded
by waves would look like and observed
that he found no such structures on
~~
the sites he visited and studiec
Schumm observed that most of the
erosion on the plaintiffs' properties
was occurring high up on the ban
He determined by observing the differ-
ent sites, that this erosion occurr-
ing well above the normal pool levels
was attributable to two primary
causes. The first and primary cause
he cited was internal erosion or what
he referred to as
> / ’ . 5
23/ Cont'd.
Schumm pointed out that even if the forces
are not sufficient to erode the bank, they
are sufficient to transport away debris
created by other erosive forces.
of the seepage or piping mechanisms.
(Tr. 7777). The court learned from
several of defendant's experts that in-
ternal erosion occurs when water from
on top of the banks supplied by rain-
fall, ponds, runoff from adjacent hills,
springs, septic tanks, and/or poor
drainage infiltrates the ground and
flows throuyh the more pervious seams
of soil toward the river. As this flow-
ing water exits the bank it carried with
it a portion of permeable soils. Gradu-
ally that seam of permeable soil, gener-
ally sand, is removed by these subsur-
face flows and the materials on top of
the sand seams at the bank face slough
Hh
oft.
The second major cause of the ero-
sion on the upper banks cited by Schumm
is flooding. The higher velocity flows
experienced during flooding cause the
upper banks to erode, and these in-
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accurately reflect ne Scientiric ap-
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oach which should have been followed
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utilized by plaintiffs* experts. (See
r\ } A ry >)
Sut la, note le Es i’ idit 10nal Ly , he
iii
plaintiffs' properties and made obser-
64
vations concerning the potential
causes of erosion at each property
adds further credence to his testi-
mony.
Simons, the second of defendant's
three primary experts, had a Ph.D. in
Civil engineering and his experience
wasS concentrated in the Study of river
mechanics, including erosion and bank
Stability problems. Like Schumm,
Simons demonstrated thorough prepa-
ration for his testimony. He had
visited every site still at issue at
the time of trial. His analysis in-
clv.ed consideration of al] possible
ceuses of erosion instead of focusing
on one or two as plaintiffs' experts
did. Overall, the court found Simons
to be a knowledgeable, experienced
witness whose familiarity with the
dynamics of the Ohio River and its
86
dams are manipulated in such a manner
that as the discharge increases into
the river the gates of the dams are
raised so that the increased volume
can flow through in a somewhat natural
manner. As the flood waters increase,
the gates are eventually totally lift-
ed out of the water and the river is
flowing naturally. £3/ At flood stage
24/ Plaintiffs alleged that the opening
of the gates to regulate flow often caused
sudden bursts of water which created high
velocity flows for a period of time in the
downstream pool. Such high velocity flows,
plain-iffs claim, caused erosion on their
prope cy. Simons explained that the dam
gates are operated to minimize such sudden
rushes of water. He also testified that
stilling basins with flow dampeners were
installed immediately downstream of the
dams to reduce the energy levels of the
water that is released. The court is per-
suaded that the released water does come
out at higher velocities at times, but that
its energy is reduced to a point that the
potential erosion caused thereby is minimal
when compared to the erosion caused by
floods and other mechanisms.
The court also notes that the instal-
lation by the Corps of some flood control
dams on the upstream tributaries helped to
87
the force of the river velocity is such
that it causes substantial erosion to
the banks especially on the outside of
river bends.
In addition to the effects of flood-
ing, Simons, like Schumm, also cited
seepage forces flowing through the
riverbanks as another cause of erosion
24/ Cont'd
hold back a portion of the increased discharge
in high precipitation periods. Therefore, the
Corps’ efforts have, in part, served to reduce
the impact of floods on the Ohio River banks as
opposed to augmenting the problem. The court,
as indicated previously, is persuaded that,
based on the entire record, the operation of
the high-lift dams does not cause an increase
in the frequency or magnitude of flooding on
the Ohio River.
Furthermore, the court notes that its prede-
cessor court was faced with a similar argument
in Loesch v. United States, supra. The Court
of Claims concluded that the high-lift dams on
the Ohio River "do not increase the frequency,
duration or peaks of floods on the Ohio River
x *#*&," Id. 227 Ct/ Cl. at 53, 645 F.2d at
919. Considering the fact that three of the
high-lift dams at issue in Loesch are again at
issue in these cases, this conclusion by the
Court of Claims further supports the view that
the high-lift dams do not cause or increase
flooding.
88
in the Ohio River banks. The excessive-
ly wet conditions of the 1970's added
more water to the land just above the
banks. The water would infiltrate
into the bank and seep through to the
river. Simons also cited how increased
land use can also add more water to the
ground which can subsequently flow
through the pervious layers of soil
and increase internal erosion problems.
Simons pointed out that the ex-
istence of the high-lift dams actually
reduced the problem of erosion caused
by seepage. He pointed out that in
the natural river, or the river with-
out its high-lift dams, floods would
go up to the same level on the banks
as flood levels achieved since the
installation of the high-lift dams.
At those flood levels the banks would
become partially saturated with water.
As the floods subsided the stored-up
89
water would seep out causing instabili-
ty in the bank. Simons explained that
without the high-lift dams the natural
level to which the river returned after
a flood was often much lower than the
pool level that the river returns to
with the high-lift dams in place. This
greater variation in pool levels would
allow the seepage forces to act over a
more expansive area of the bank causing
more erosion damage.
Simons also analyzed the impact of
waves on the banks of the Ohio River. He
admitted that at low velocities waves
acting in concert with other erosive
forces will cause some damage. However,
it was his opinion that as compared to
other erosive forces, i.e., floods,
river flow and internal erosion, the
impact of waves alone is insignificant.
Simons stated that wave action worked
with other forces to cause damage which
90
would have occurred anyway, absent the
wave element, because of the other
forces at work. In contrast to Simons'
approach and conclusions, plaintiff
relied on a generalized theory the
wave action caused erosion on all the
sites involved. The court is per-
suaded, especially after hearing the
testimony of defendant's experts who
have visited all the sites, that
plaintiffs' approach in this case
was insufficient to meet its regui-
Site burden of proof.
Finally, Simons, like Schumn,
pointed out that ice flows in the
river can cause damage to the banks.
He also found that some of the sites
were experiencing landslides. Such
landslides may have become more fre-
quent caused in part by the wet
climate of the 1970's However,
Simons also pointed out that the
yi
:
%
2
Pt
id
3
;
91
elevated pool levels created by the
high-lift dams helped reduce the fre-
quency of landslides to a certain extent
because the water pressure higher up on
the banks gave the banks a constant
source of stability.
The court found Simons' testimony
quite persuasive. His thorough prepa-
ration and consideration of all potential
causes, like Schumm's methodology, seems
to conform more closely to the type of
scientific analysis that experts gener-
ally rely on than the analysis utilized
by plaintiffs' experts. (See supra note
16.) If, as stated earlier, an opinion
is only as good as the facts which sup-
port it, then the testimony of all de-
fendant's experts is entitled to great
weight.
The final primary expert presented
by defendant was Hagerty. Hagerty re-
ceived his Ph.D. in civil engineering in
92
1969. At the time of trial he was a
professor of civil engineering at the
University of Louisville. He had also
written seven books and almost 60
journal articles. Hagerty's experi-
ence with the Ohio River and its high-
lift dams is, to say the least, exten-
Sive. From 1971 when he began en-
vironmental impact studies on the
Cannelton Dam until the time of trial,
Hagerty studied the high-lift dams on
the Ohio River constantly.
Hagerty was the original leader
of the erosion research team for the
defendant in Loesch v. United States,
Supra. As such, he studied at length
several of the dam pools involved in
this case. His previous experience
in this region, combined with his
painstaking study efforts in prepa-
ration for this trial make him emi-
nently well-qualified to express an
93
opinion concerning the cause of erosion
on each and every tract of land at issue
in this case. Hagerty's methodical
analysis of each site, which generally
included at least three visits=2 to each
tract as well as the supervision of
extensive data collection on each site,
provided a substantial degree of credi-
bility and persuasiveness to his testi-
mony.
Hagerty commenced his testimony by
providing his general observations con-
cerning all the sites that he visited.
He first expressed his opinion that 99
percent of the erosion which occurs on
the Ohio River results from storms and
25/ On a very small number of the sites
Hagerty made only two visits. However, om many
sites he was there four or more times. In addi-
tion to these visits, Hagerty took an extensive
reconnaissance trip down the entire length of
the Ohio River in 1978. During said trip
Hagerty took thousands of photographs of the
riverbanks and recorded his observations made
primarily from a boat.
94
floods. This testimony was dramati-
cally and persuasively illustrated by
movies taken from stationary cameras
set up by Hagerty on the banks of the
Ohio River. These films showed large
chunks of riverbank falling off as
the result of extremely high-water
levels, high-flow velocities and hugh
waves generated during winter storms.
In addition to the erosion caused
by the high velocities of the river
during floods and waves coinciding
with flood waters generated during
winter storms, Hagerty emphasized
that during floods the water level
becomes excessively high on the face
of the banks. The water from the
river infiltrates the bank and when
the flood recedes, the water stored
up in the bank seeps out causing in-
ternal erosion. This seepage leads
to the slumping of soils which no
ob Metab
95
longer have the support of the seams of
material which are eroded away. This
piping or seepage form of erosion was
found by Hagerty to exist on the proper-
ty of every litigant that exhibited ero-
sion damage not attributed totally to
landslide phenomena. Hagerty found that
springs, ponds, standing rain water and
septic tank runoff as well as other
sources were all substantial contribu-
tors to internal erosion which he found
to be the major cause of erosion on the
upper banks in addition to the flood
mechanism.
Hagerty greatly discounted the im-
pact of waves on the shore. Hagerty
cited an extensive study which concluded
that wind waves have a more significant
impact than waves generated by tow boats
and that both types of waves were an
insignificant cause when compared to
natural water velocities. Hagerty's own
96
observations corroborated the con-
Clusions of that report. Hagerty
observed on almost every site at
issue that, at most, the waves acted
eta 1 ye Nt Se LAN tai oP AMIDES iil AS We
only on the erosion debris which had
fallen from the higher bank to the
foot of the bank after internal ero-
sion caused a collapse. He found
that the waves seldom had a major
impact on this loose debris and that,
in fact, flood flows generally acted
to rework and remove the fallen ma-
terial. In addition, he pointed out
that substantial erosion often oc-
curred far above the normal pool
level where weves generated by wind
or tow boats could not possibly
reach. In fact, Hagerty observed
that the banks often exhibited a
stable mid-section with substantial
vegetation while erosion was oc-
curring primarily above the stable
97
point. Given these facts, plaintiffs'
theory that the erosion in all instances
is caused by wave action appears to be
implausible. so!
Plaintiffs also assertec that the
pool level increases aiso contributed to
the erosion complained of in this case.
Hagerty addressed this contention by
Y
26/ Plaintiffs' expert, Fuquay, claimed that
the condition of the islands in the Ohio River
supported his wave theory. Fuquay hypothesized
that if the erosion was not caused by waves gen-
erated by wind and river traffic, then both the
side of the island encountering the heavy
traffic and the side away from such congestion
would experience the same extent of erosion
damage. On the islands Fuquay observed he found
significant erosion only on the traffic side.
Hagerty, on the other hand, studied several
islands in the dam pools at issue in this case
and found significant erosion on both sides
caused by internal erosion of seepage and piping
and the force of the river fiows. After review-
ing both experts' observations concerning island
erosion, the court finds Hagerty's opinions more
persuasive based on the extensive studies that
he did on 18 Mile Island including visiting the
island weekly for i year, and the fact that
Hagerty studied several islands which were in
the relevant dam pools in this case whereas
Fuquay studied islands only in upstream pools
not in issue in these cases.
98
Stating that if such a theory were
accurate then the erosion would be
more extensive in the high-lift dam
pools which had been in existence the
longest. However, he found no such
correlation in comparing the age of
the various dam pools and the extent
of erosion teking place on each one.
In similar correlation studies
Hag2rty determined that two other
theories advanced by plaintiffs were
not accurate. First, plaintiffs
asserted that fluctuations in the up-
stream portion of the dam pools £i/
caused substantial erosion. However,
27/ Defendant presented David Beatty
(Beatty), a supervisory hydrologist engineer
with the Army Corps of Engineers with 22
years’ experience, to, in part, explain the
fluctuations in pool level experienced at
the upper end of the dam pools. Beatty ex-
plained that during the wetter than normal
1970's discharge increased significantly
in the Ohio River basin. This increased
discharge would fluctuate with the amount
of precipitation for a given time period.
= ec
99
in a study supervised by Hagerty it was
found that there was no more erosion in
the upper end of the pools than in the
lower end. Second, plaintiffs claimed
that as the volume of river traffic in-
creased so did the erosion damage on the
riverbanks. However, in another study
directed by Hagerty no correlation was
found between traffic volume and the
27/ Cont'd.
As discharge increased, depending on the gate
area of each high-lift dam, the dams would react
at different discharge levels, to compensate for
any increased flow. As a result an upstream dam
may have been releasing water at a slightly
greater rate than the down-river dam thus caus-
ing a momentary pool level rise. However,
Beatty cited a study done (Tr. 8481-83) which
determined that such upper-pool fluctuations in
water level did not increase appreciably after
the construction of the high-lift dams as com-
pared to those fluctuations experienced when
only the low-lift dams were operating. Since
all the plaintiffs maintained that erosion
along the Ohio River was at most insignificant
prior to the installation of the high-lift dams
and the study cited by Beatty finds similar
pool fluctuations at the time of both the high
and low-lift dams then it is difficult to per-
ceive how such fluctuations can be the cause
of the erosion taking place on the properties
at issue.
100
extent of erosion on a particular dam
pool. 28/
In specifically addressing Fuquay's
wave theory, Hagerty observed the
study sites, along the Monongahela
River and on Ohio River dam pools not
at issue in this case, utilized by
Fuquay to develop his theory. He
basically found Fuquay's study sites
to be unrepresentative of some of the
relevant areas along the Ohio River.
29/ In addition to finding Fuquay's
28/ Hagerty also rejects, at least in
part, plaintiffs’ claim that the Corps’
cutting of the trees on the bank contributed
greatly to the erosion problem. Hagerty
explained that trees provide some stability
to banks, but they cannot stop erosion.
Trees, he testified, merely slow down
erosion slightly. Therefore, he concluded
that the cutting of the trees is not an
actual cause of erosion.
29/ Hagerty found at one primary
Monongahela study site hugh coal refuse
piles from a mining operation sitting on
the riverbank in Fuquay's study area which
placed an incredible weight load on the
bank. He found streams flowing toward the
101
study areas unrepresentative, Hagerty
rejected Fuquay's empirical theory,
i.e., a theory based primarily upon ob-
serving a phenomenon. Basically, Hagerty
found that the benches Fuquay observed
(even at his own study sites) were
caused by internal erosion or seepage
damage. The material making up Fuquay's
benches consisted of soil which had
slumped from the upper banks and subse-
quently was reworked by flood flows and
in part by waves.
The aspect of Hagerty's testimony
which made it strongly persuasive to the
court was the extensive nature of the
29/ Cont'd.
riverbank as well as abandoned sewers and mines
behind the bank that Fuquay had not considered.
Hagerty discovered that a flood had occurred
in the study area just prior to Fuquay's ob-
servations which had caused substantial damage.
At one of Fuquay's sites dredging had occurred
prior to his study which had altered the charac-
ter of the riverbanks.
102
studies performed. Hagerty's general
theories regarding the cause of ero-
Sion on plaintiffs' properties were
Supported by direct observations of
each site, extensive soil sampling,
thousands of photographs and count-
30/ After
less scientific tests.
gathering this data and analyzing it,
Hagerty was able to classify each
litigants property depending on the
degree of erosion occurring there,
if any. aa?
30/ For example, on each site where
erosion was alleged to have occurred, at
least one and often several trenches were
dug to analyze the soils and to search
for evidence of piping or seepage.
31/ Hagerty classified the different
properties with numbers one through five.
One through three indicated unstable banks:
one indicating substantial erosion and
three indicating erosion to a lesser de-
gree. A classification of four indicated
a stable bank. A classification of five
indicated an area suffering from hillside
creep or landslides. A classification of
five also indicated an artificial condition
on the bank, i.e., rip-rap.
103
Defendant and its experts have at
no time disputed that substantally all
of the properties at issue in this case
are suffering from some form of ero-
sion or soil failure. Hagerty's classi-
fications reflect this concession. Of
the approximate 125 sites remaining in
this case Hagerty classified approxi-
mately 14 of the sites as stable. Most,
if not all, of these sites are on tri-
butaries of the Ohio River as opposed
to the main stem. He classified 16
sites as either landslide areas or pro-
perties with banks which are protected
by an artifical condition such as rip-
rapping. There were several properties
which were in pact classified as being
landslide areas or as areas covered
with artificial conditions not included
in this number. The remaining sites
were classified as suffering from ero-
sion either substantially or to a lesser
104
degree according to Hagerty's classi-
fication system. (See supra note 31).
In his testimony, Hagerty went
through each and every piece of pro-
perty at issue conveying his obser-
vations, the results of the analysis
of the data collected, and finally
giving his conclusion as to the cause
of erosion at each site. With the
exceptions of the stable sites,
experiencing little or no erosion,
and the sites with artificial pro-
tection or possessing landslide con-
ditions not attributable to the
river's activities, Hagerty ulti-
mately concluded that the erosion
complained of is being caused by
seepage and piping which causes the
upper bank to slump off. ge/
32/ Hagerty cited several sources of
water which contribute to this internal ero-
sion. The primary sources were: (1) flood
105
The erosion debris created by such
slumping is reworked and often removed
by periodic flood flows on the river.
He found no evidence of significant wave
damage and pointed out that the erosion
complained of is both vertically and
horizontally distant from the normal
pool level, where waves would act. More
importantly, Hagerty did not attribute
any of the erosion complained of in this
case to the installation and operation
of the high-lift dams. With this ulti-
mate opinion, defendant's other expert
witnesses concur.
32/ Cont'd
level waters which charge the bank with water
that is allowed to seep out when the flood re-
cedes, (2) ponded or standing water above the
banks caused by excessive rainfall, springs
and poor drainage, and (3) increased land use
including more septic tank runoff and more
agricultural use of the land which facilitates
the infiltration of water into the soil.
Another erosion mechanism mentioned fre-
quently by Hagerty and other experts is draw-
down. Drawdown is somewhat similar to flood-
106
It must be emphasized that the
extensive study performed by Hagerty
and the engineers and technicians who
assisted him was of such a nature
that it warrants this court giving
great weight to Hagerty's testimony.
The court is in no way deferring to
his or any other expert opinion, it
is merely attributing a degree of
weight to Hagerty's opinion as the
court must do with each expert and
32/ Cont'd.
water charged seepage in its effect.
Briefly, as flood waters rise the water
infiltrates tension cracks in the river-
banks. This water creates pressure in the
cracks. However, this pressure is counter-
acted by the pressure on the surface of
the riverbanks created by the high-water.
As the flood recedes, the countervailing
pressure on the face of the banks is re-
moved and the water pressure in the tension
cracks acts to cause slumping. Hagerty
emphasized drawdown but found it to be a
lesser erosion factor since the instal-
lation of the high-lift dams because the
variation in water level after the re-
cession of flood waters has diminished
and thus the drawdown mechanism has less
area upon which to act.
lay opinion given.
There is a great deal of conflict
and dispute in the record on the erosion
issue among the witnesses who testified
in this case, lay and expert. As might
be expected, there were two sides to the
issue. Defendant's experts presented a
solid front that held that the high-lift
dams were not responsible for the ero-
sion taking place on plaintiffs' pro-
perties. However, plaintiff's expert,
Fuquay, who was the only primary expert
for plaintiffs to advance an ultimate
Opinion on causation, admitted that the
erosion damage occurring on the upper
portions of the banks was caused by
mechanisms outside the control of de-
fendant. Having concluded that the
construction and operation of the high-
lift dams did not cause any of the ero-
sion damage complained of, defendant's
experts would certainly agree with this
108
FL RED
portion of Fuquay's testimony. Based
on the entire record, the court con-
cludes that damage to the higher
banks was caused by internal erosion
and floods. Since the court has con-
cluded that the high-lift dams do not
increase the frequency, duration or
peaks of floods on the Ohio River,
it follows that a great deal of the
erosion damage on plaintiffs' river-
banks would have occurred absent the
installation of the high-lift dams.
See United States v. Sponenbarger,
308 U.S. 256, 266 (1939); Loesch v.
United States, supra, 227 Ct. Cl.
at 53, 645 F.2d at 919; Yazel v.
United States, supra, 118 Ct. Cl.
at 71-73, 98 F.Supp. at 1003-04.
The general rule is that opinion
evidence should be evaluated based
on the soundness and reality of the
reasoning disclosed. Estate of Mabel
169
Lloyd Ridgely v. United States, 180 Ct.
Cl. 1220, 1232 (1967). See also Campbell
v. United States, 228 Ct. Cl. 661, 684,
661 F.2d 209, 222 (1981). The Ninth
Circuit United States Court of Appeals,
in Holm v. United States, 325 F.2d. 44,
46 (9th Cir. 1963), approved a jury
instruction which stated in pertinent
part: "In this case you have heard the
testimony of one expert, and I will tell
you that you may reject his opinion en-
tirely if you think that the reasons
given in support of his opinion are un-
sound." In this case the court must
question the soundness of the con-
clusions reached by plaintiffs' expert
(Fuquay) based on his failure to ade-
quately observe the plaintiffs' pro-
perties, the general unrepresentative
nature of his chosen study area, and
the fact that he failed to consider the
various potential causes of the erosion
110
damage in these cases. (See supra
note 16). As the court stated
earlier, “opinion evidence is only
as good as the facts upon which it
is based." Loesch v. United States,
Supra, 227 Ct. Cl. at 46, 645 F.2d
a 915. Though the court does not
reject the opinion of plaintiffs'
expert, the court does not attri-
bute less weight to it based on the
limited factual basis for his
Opinion.
At the same time that the court
attributes less weight to plaintiffs'
expert's opinion, the court notes
that neither plaintiffs' experts
nor plaintiffs' counsel in his post-
trial submissions attempted to
address the opinion of defendant's
experts or the facts which support
such opinions. It is true that the
testimony of experts is only a guide
111
for the court and not conclusive of the
factual issues. See Estate of Mabel
Lloyd Ridgely v. United States, supra,
180 Ct. Cl. at 1232. However, uncontra-
dicted testimony of an expert can be
quite persuasive and thus a party op-
ponent should be prepared to meet and,
if possible, discredit an expert's
testimony. 11 J. Moore, Moore's Federal
Practice, § 702.30[1] (2d ed. 1982).
In this case the opinions of de-
fendant’s experts were supported by
facts having strong probative value.
Though the opinions of defendant's ex-
perts conflicted with those of plain-
tiffs' experts, the court concludes
that the direct observations and ex-
haustive studies of the properties of
each plaintiff warrants the court at-
tributing greater weight to the
opinions of defendant's experts. 11 J.
Moore, supra, § 702.30[3]. The Court
112
of Claims, in Estate of Mabel Lloyd
Ridgely v. United States, supra, 180
Ct. Cl. at 1232 stated: “It is only
where expert opinion is supported by
facts having strong probative weight,
that the opinion will in itself be
2n conclusive weight.”
the court does not find the
it does
evidence, that the
relevant high-lift dams were the di-
rect and proximate cause of the ero
incurred on their riparian
Loesch v. United States
Ce. Cle. BO 64, 33,
- United States v. 329.05
i
Acres of Land, 156 F. Supp. 67, 71
(S.D.N.Y. 1957), aff'd, 263 F.2d 331
(2d Cir. 1959); United States ex rel.
T.V.A. v. 137 Acres of Land, 406 F.2d
1283, 1287 (6th Cir. 1969}. These are
also cases, as stated previcusly, in
which the complexity of the erosion
issue warrants the court placing a great
deal of emphasis on expert testimony.
See Loesch v. United States, supra, 227
Ct. Cl. at 45, 645 F.2d at 914. Upon a
review of the entire record, including
the testimony of the plaintiff land-
/
and
Owners or their representatives,
with specific emphasis on the ex
TI
@
a
(?t
33/ Though the court placed more weight on
the opinions of the experts concerning causation
than it did on the causation orinions given by
the lay plaintiff/landowners, the court recog-
nizes that expert testimony does not foreclose
lay testimony concerning the same matter. See
Stafos v. Missouri Pacific Rd. Co., 367 F.2d
314, 317 (10th Cir. 1966). The court thoroughly
reviewed the testimony and opinions of all of
the plaintiffs and considered their views on
causation. However, given the complex and
114
testimony presented by both parties,
the court concludes that plaintiffs
have failed to carry their burden of
proving that the construction and
operation of the high-lift dams on
the Ohio River were responsible for
the erosion taking place on their
properties. 23/ Therefore, their
erosion claims must be denied.
33/ Cont'd.
varied forces involved in ascertaining erc-
sion, many of which are not readily ap-
parent by simply viewing a riverbank, the
court places less weight on the opinions
proffered by plaintiffs. With both ex-
pert and nonexpert opinions before it, it
is the court's responsibility to determine
how much weight is to be accorded to such
opinions. See Greenwood Ranches, Inc., v.
Skie Constr. Co., 629 F.2d 518 (8th Cir.
1980). See also 11 J. Moore, Moore's
Federal Practice, §702.30[2] (2d ed. 1982).
34/ In Rhoads v. United States, 6 Cl.
Ct. 278 (1984), this court similarly found
that Rhoads had failed to meet his burden
of proof relative to his claim that the
construction of a navigation dam at the
mouth of a creek on the Arkansas River was
responsible for the erosion of his proper-
ty. The pool of the dam in Rhoads raised
the elevation of the water on Rhoads’
)
115
B.
In addition to plaintiffs' claims
that the construction and operation of
the high-lift dams by defendant caused
significant erosion on the entire ex-
tent of their riverbanks, plaintiffs
also assert that the ordinary high-
water marks (OHWM) established by the
Corps are erroneous and therefore they
are entitled to additional just compen-
sation for resulting additional flowage
easement takings. 22!
34/ Cont'd.
property some 10 to 12 feet. It is clear to the
court, contrary to plaintiffs’ assertion, that
these erosion cases are complex. Such cases re-
quire a great deal of persuasive expert testi-
mony along with a clear and concise development
of the facts in order for plaintiffs to satisfy
the burden of proof requirement imposed upon
them.
35/ This argument concerning the accuracy
of the OHWM determination was raised by plain-
tiffs in its final brief. It was not an issue
that was tried. See Baskett v. United States,
2 C1.Cl. 356 (1983). It appears that the testi-
mony of plaintiffs’ primary expert (Fuquay) at
trial in which he stated that the OHWM determi-
116
Plaintiffs' assertion that the
OHWM determinations were erroneous
is based on the theory of their ex-
pert (Fuquay). Fuquay theorizes that
the new OHWM determinations made by
the Corps in anticipation of the in-
stallation of the high-lift dams were
35/ Cont'd
nation should have been established higher
up on plaintiffs’ riverbanks resurfaced this
argument and plaintiffs are pursuing it out
of necessity.
The old OHWM, which was established
prior to the present OHWM set out to take
into account the raising of the pool levels
by the high-lift dams, formed the lower
limit of the flowage easements acquired from
plaintiffs by the Corps. The government's
navigational servitude extends to the OHWM.
See United States v. Willow River Co., 324
U.S. 499, 509 (1945). Established law re-
quires the government only to pay for lands
taken above the OHWM. United States v.
Virginia Electric & Power Co., 365 U.S.
624, 627-28 (1961). In this case the OHWM
questioned by Fuquay is the upper limit of
the flowage easements obtained by the Corps.
The old OHWM, which formed the lower limit
of the flowage easements obtained from
plaintiff by the Corps, corresponds to the
OHWM referred to in United States v.
Virginia Electric & Power Co., supra.
117
too low. Said new OHWM determinations
served as the upper limits for the
easements the Corps acquired from the
various plaintiffs whose property in-
curred a pool level increase. Fuquay
theorized that the new OHWM should have
been established at a higher level and
thus the Corps should have been re-
quired to purchase more land for ease-
ment purposes when the high-lift dams
were installed.
Fuquay based his theory on his obser-
vations of erosion in the form of bench-
ing or terracing which was occurring
above the normal pool level and which
he stated was caused by wave action.
He concluded that the location of such
benches should have been the point at
which the new OHWM was located. Fuquay
apparently assumed that the placing of
the OHWM at the level of the observed
benching would entitle plaintiffs to
118
additional compensation. 22/
After reviewing Fuquay's theory,
the court concludes that plaintiffs
have failed to carry their burden of
_stablishing by a preponderance of
ae evidence that the Corps’ OHWM
determinations as to each property
on issue were erroneous. Such a
failure of proof is one basis upon
which to reject any claims regarding
36/ Plaintiffs' counsel further compli-
cates the issue concerning the propriety of
the OHWM determinations by at least im-
plicitly arguing that the initial OHWM was
established at the time of the 1911-14 maps
presented at trial. Plaintiffs’ counsel
implies that the present plaintiffs were
entitled to compensation for all of the
land taken between this early OHWM and the
proper OHWM that Fuquay argues should be
established. Plaintiffs’ counsel is
apparently of the opinion that only one
actual OHWM can exist and that was the one
established on the 1911-14 map placed into
evidence.
Putting Fuquay’s theory aside for the
moment, the court rejects the view of
plaintiffs' counsel that plaintiffs are
entitled to compensation for all land taken
from the 1911-1914 OHWM to the new proper
119
the propriety of the present OHWM. See
Loesch v. United States, supra, 226 Ct.
Cl. at 59, 645 F.2d at 923; United
States v. 329.05 Acres of Land, supra,
156 F. Supp. at 71. See also United
States ex rel. T.V.A. v. 137 Acres of
Land, supra, 406 F.2d at 1287.
Fuquay, who spent only one weekend
viewing the properties of some of the
36/ Cont'd
OHWM as theorized by Fuquay. An OHWM is not a
static line established at one point in time.
This point is evidenced by the 1911-1914 river
maps relied on by plaintiffs, which indicate
two distinct OHWMs established approximately
20 years apart. Additionally, another set of
OHWMs was established on the river when the
low-lift were installed. Presumably, the land-
owners were compensated for the land taken up
to the OHWM established when the low-lift dams
were installed. If they were not, any claims
for such compensation are now barred by the
statute of limitations. Therefore, it was
not necessary for the Corps to compensate
plaintiffs for all of the land between the
1911-1914 OHWM and Fuquay's perceived proper
OHWM since the OHWM is constantly changing
and was certainly updated when the low-lift
dams were placed in operation, and again up-
dated with the high-lift dams were constructed.
120
plaintiffs on the McAlpine and
Cannelton pools from a boat, admitted
that he had not determined where the
OHWMs should be located. The court
finds that his OHWM theory was a
generalized one with no proof that it
held true for all of the properties
at issue. Plaintiffs presented no
sutvey evidence or other indicia of
the correct locations for the alleged
proper OHWMs for the specific sites.
In addition, Fuquay's testimony did
not indicate that the benches he ob-
served were in fact above the ease-
ment areas acquired by the Corps.
It may well be that the benches he
observed on certain properties were
within the easement areas acquired
by the Corps from the property owners
allowing the Corps to temporarily
flood said areas. See note 5, supra.
Fuquay's testimony concerning the
121
accuracy of the OHWM determinations was
given in the context of erosion gener-
ally. After he admitted that the actions
of the high-lift dams were not responsi-
ble for erosion on the upper banks, he
focused his attention on the benching
close to the land-water interface. Basi-
cally Fuquay stated that the OHWMs
(upper limits of the easements) should
be raised to account for wave generated
erosion on the lower banks not antici-
pated by the Corps. However, as stated
earlier, after reviewing the testimony
of the experts of both parties, and the
bases therefor, the court is persuaded
that the benching and terracing phe-
nomenon observed by Fuquay and some of
the plaintiffs were caused not by wave
action, but by the mechanism of internal
37/
erosion. Internal erosion, also re-
37/ The court notes that very few of the
122
ferred to as piping or seeping,
caused, in part, the failure of the
upper banks. Eventually, the failed
material of the upper banks works its
way down the bank and accumulates at
the lower levels on the riverbanks.
This failed debris forms terraces or
benches because the continuous piping
action constantly moves the lighter
soils downward while the denser soils
settle on the bank more quickly.
The result of this movement of vari-
ous types of soils is a terraced
38/
effect. Therefore, the court is
37/ Cont'd.
plaintiffs cited as significant the benching
type of erosion observed by Fuquay near the
land-water interface. The erosion empha-
sized by plaintiffs is that which was taking
place on their upper banks. It is that type
of upper bank erosion damage which Fuquay
conceded was not caused by the high-lift
dams at issue.
38/ The testimony of one of plaintiffs'
123
persuaded that the line of benches ob-
served by Fuquay was not caused by the
raising of the pool levels and associ-
ated wave action and no additional
compensation is due plaintiffs as a re-
sult of this finding.
C.
In additior to plaintiffs' wave
theory and associated OHWM argument,
plaintiffs have advanced a number of
other arguments in support of their
claim that the high-lift dams caused the
erosion on their riverbanks. The court
notes that these arguments were often
less than clear and frequently based on
the testimony of plaintiffs' counsel to
which the court need not attribute any
weight. In any event, the court has
38/ Cont'd.
experts (Gray) (see supra note 14) supports
this theory on how the benches were formed
(te. S153).
124
reviewed plaintiffs's subsidiary argu-
ments and finds none of them per-
:' 9
Suasive on the issue of erosion. #2/
39/ Many of the subsidiary arguments
raised by plaintiffs were addressed in detail
and rejected by the court in Loesch v. United
States, supra. For example, in these cases,
like in Loesch, plaintiffs assert that the
Corps was without authority from Congress to
construct the high-lift dam navigation system
on the Ohio River. However, plaintiffs in
these cases as in Loesch failed to introduce
sufficient evidence to prove this assertion.
See Loesch v. United States, supra, 227 Ct.
Cl. at 39 n.5, 645 F.2d at 9ll n. 5.
Another subsidiary argument on causation,
raised primarily by plaintiffs' counsel, is
that sediment is accumulating in the center
of the Ohio River which is making the river
shallower and thus causing it to become in-
creasingly wider. Plaintiffs’ counsel as-
serts that such a widening of the river is
resulting in a taking of plaintiffs' pro-
perty. Based on the entire record, the
court does not find that the high-lift dams
are causing an excessive amount of sediment
to settle in the river channel. The testi-
mony of defendant's experts persuasively
supports the court's finding in this regard.
Plaintiffs' counsel's argument was essential-
ly based on post hoc ergo propter hoc rea-
soning that the banks are eroding and there-
fore the sediment must be accumulating in
the river. The court finds such an approach
to proving sediment accumulation unper-
suasive. See Vulentine and Littleton v.
United States, 144 Ct. Cl. 723, 726, 169
125
For example, Plaintiffs cite
Cloverport Sand and Gravel Co. v.
United States, 6 Cl. Ct. 178 (1984) as
an instance in which the Corps admitted
liability for flooding caused by one of
the high-lift dams on the Ohio River
(Cannelton Dam), suggestirc, the Corps
39/ Cont'd.
F. Supp. 263, 265 (1959). The experiments
conducted and data collected by defendant's
experts persuade that sediment accumulation
in the river has not increased significantly
since the installation of the high-lift dams.
Plaintiffs’ counsel also asserted at oral
argument an in plaintiff's reply brief that
the Ohio River had only increased in width
0.001 of an inch to 1.9 inches at the most
annually from its inception until the instal-
lation of the high lift dams and since the
installation of the dams the banks have been
eroding at a much more substantial rate.
Plaintiff's counsel argued that these facts
clearly demonstrate the high-lift dams are
causing plaintiffs' erosion damage.
Plaintiffs calculated the 0.001 of an inch
to 1.9 inch annual increase in the width of
the Ohio River by dividing its current width
(2000 feet), by the age of a given portion of
the river (either 1,000,000 or 13,000 years). .
The record indicates that the assumptions upon
which plaintiff's counsel based this calculation
126
should have admitted liability in
these cases. The Government did admit
liability in the Cloverport case but
that case is factually istinguishable
from the case at bar.
In Cloverport v. United States,
supra, the plaintiff owned a gravel
pit which was separated from the Ohio
River (Cannelton Pool) by a natural
39/ Cont'd.
are clearly erroneous. The photographs and
movies placed into evidence at trial graphi-
cally indicated that substantial erosion has
occurred along the Ohio River for many years
and probably since * nception. In addi-
tion, defendant's «..,ert (Schumm) classified
the Ohio River as a meandering river which
means that its channel is constantly changing
position. The record indicates, contrary to
plaintiffs’ counsel's assumptions, that the
Ohio River has maintained a substantially
consistent width for centuries. Its banks
have undergone a constant gradual process of
eroding and healing which acted to maintain
its substantially constant width while the
river experienced path alterations. There-
fore, plaintiffs’ counsel's conclusion re-
garding the rate of erosion on the Ohio River
banks and corresponding width changes prior
to the high-lift dams being much less than
the rate after the dams became operative has
no support in the record.
127
levee. When the pool level was in-
creased behind Cunnelton Dam, the water
table in plaintiff's pit also rose. How-
ever, the Corps, like it did with many
of the plaintiffs in these cases, ac-
quired an easement to compensate the
plaintiff for such a taking. Id. 6 Cl.
Ct. at 184. After one major flood in
a series of spring floods in 1972, in-
stead of just allowing the pool level
to just recede to its normal elevation
of 383 m.s.l., the Corps allowed it to
drop to 373 m.s.l. to allow for the
demolition of a low-lift dam. In doing
so, the Corps removed the support for
the levee separating the plaintiff's
pit from the river and the levee col-
lapsed. Without the levee the pit was
completely open to the activities of the
Ohio River including the accumulation
of debris and sediment in the excavation
area. It was clear in Cloverport that
a
128
the Corps in dropping the pool below
the normal pool level caused the levee
to collapse and the pit to become ex~
cessively flooded. The admission of
liability in Cloverport was based on
the conceded fact that the Corps
caused the damage.
In this case the government main-
tains that its construction and oper-
ation of the high-lift dams have not
caused the damage complained of and
the court concludes that plaintiffs
have not proven otherwise. Several
of the plaintiffs cited intermittent
acts by the Corps as potential causes
of erosion on the properties. Such
instances include manipulation of the
dams to lower pool levels to facili-
tate the removal of the low-lift dams
on the few occasions that this was
necessary. The dams were also manipu-
lated in rare emergency situations to
129
to provide an influx of water into a
downstream pool to float off a grounded
barge or to remove debris from the gates
of a downstream dam. Such intermittent
acts alone do not constitute takings by
inverse condemnation. See Singleton v.
United States, 6 Cl. Ct. 156, 162-63,
(1984) and cases cited therein. In ad-
dition, absent a showing that such ma-
nipulations of the dams caused damage
to plaintiff's property no taking can
be established. See generally Cloverport
v. United States, supra. After a review
of the record the court finds insuf-
ficient evidence in this case to prove
that the cited intermittent manipu-
lations of the relevant high-lift dams
caused any of the erosion damage on
plaintiffs’ riverbanks.
The court concludes that, after re-
viewing all of plaintiffs’ theories con-
cerning the high-lift dams' alleged
130
causation of the damage complained of,
plaintiffs have not met their burden
of proof. Said burden, as stated
earlier, was to show by a preponder-
ance of the evidence that the con-
struction and operation of the dams
in question were the direct and proxi-
mate cause of the erosion damage on
plaintiffs' properties. See Loesch
vy. United States, supra, 227 Ct. Cie
at 44, 53, 645 F.2d at 913, 920.
Plaintiffs have fallen short of this
burden under every theory of cau-
sation presented by them.
Iil.
If one assumes arguendo that the
high-lift dams at issue do cause the
erosion complained of, then it is
necessary to address the statute of
limitations question. In defendant's
post-trial brief it argues that the
claims of some of the plaintiffs in
131
these cases should be barred by the
statute of limitations. Defendant urges
the court to find that plaintiffs’ cause
of action first accrued when the normal
pool level behind each high-lift dam at
issue was reached for the first time
citing Court of Marion County v. United
States, 53 Ct. Cl. 120 (1918). However,
defendant does recognize that the rule
which states that a riparian landowner's
cause of action accrues when a dam is
completed and its pool is completely
filled, has been implicitly rejected
in some cases. Defendant urges as an
alternative that the court find
plaintiffs's cause of action accrued
"once the consequences purportedly re-
sulting from the impoundment of the
pools became apparent." (Df's Br. 5).
See United States v. Dickinson, 331
U.S. 745, 749 (1947); Loesch v. United
States, supra, 227 Ct. Cl. at 61n. 30,
132
645 F.2d at 924-25 n. 30; Barnes V.
United States, supra, 210 Ct. Cl. at
480, 538 F.2d at 873.
Plaintiffs, both anticipating
defendant's statute of limitations
argument and responding thereto in
their post-trial submissions appear to
argue that until the easement areas
taken by the Corps are completely
washed away, the landowners' cause of
action does not accrue. Plaintiffs
argue that none of the easement areas
on the plaintiffs' properties had
completely eroded away more than 6
years prior to each plaintiff filing
sult. Plaintiffs cite United States
v. Dickinson, supra, in support of
their argument that the "taking" in
these cases is continuous and was not
completed prior to the filing of
their petitions (complaints). There-
fore, they conclude the statute of
}
limitations is not a bar to any of
their suits. 40/
Plaintiffs had 6 years after their
claims first accrued to file their com-
plaints in this court. 28 U.S.C. §2501
(1982) .41/
Therefore, the court must
first determine when the claims of the
respective plaintitfs first accrued in
40/ Plaintiffs stated in their reply to de-
fendant's post-trial brief that the parties re-
reserved the statute of limitations problems for
the damage trial. First, the court has no know-
ledge that this issue was reserved. Second, the
fact the defendant presented a thorough argument
on the statute of limitations in its post-trial
brief does not indicate that defendant reserved
the issue. Finally, the statute of limitations
is jurisdictional. Parker v. United States, 2
Cl. Ct. 399, 402 (1983) and cases cited therein.
Therefore, such an issue could not be reserved
by the parties.
41/ In this case plaintiffs in Docket No.
161-78 must show that their claims accrued on
or after April 14, 1972. Plaintiffs in Docket
No. 340-78 must demonstrate that their claims
accrued on or after July 25, 1972. Plaintiffs
in Docket No. 311-80L must establish that their
claims accrued on or after June 17, 1974. The
actions of plaintiffs in Docket No. 317-79L
must have accrued on or after July 16, 1973.
Finally, plaintiffs in Docket No. 616-80L must
show that their cases accrued on or after
November 17, 1974.
134
these cases. However, it is first
necessary for the court to set forth
the appropriate test for determining
the proper date upon which a claim
accrues in cases like the ones at
bar.
Defendant urges the court to adopt
the reasoning in Court of Marion
County v. United States, supra. The
Court of Claims stated in that case:
We are of the opinion that the
cause of action, if there was one,
* * * accrued when Dam 14 was com-
pleted and put in operation by the
filling of the pool, and that
action not having been commenced
within six years, we are without
jurisdiction. [Id. at 150.]
However, two points weigh against
utilizing the date upon which the dam
pools were completely elevated as the
day that the plaintiffs' cases first
135
accrued in these cases. First, Court of
Marion County v. United States, supra,
involved a claim that certain dams
raised the water level and caused con-
tinuous overflows making use of a road
impossible. Thus, it was a case in-
volving flooding and not specifically
the problem of erosion damage. The
court opines that in cases in which it
is alleged that dams are causing flood-
ing alone, which results in a taking,
utilization of the date of complete im-
poundment may be appropriate. However,
in a case such as this one, in which
erosion damage is claimed, the erosion
may be more gradtial and the effects not
as readily apparent as would be the
case with continuous flooding. There-
fore, the court concludes that the
factual distinctions between this case
and Court of Marion County v. United
States, supra, weigh against utilizing
136
the test set forth in that case.
The second point which weights
against using the date the normal pool
leveis were achieved behind the vari-
ous high-lift dams as the date
plaintiffs' causes of action accrued
is the development of case law since
Court of Marion County was decided
some 67 years ago. Specifically the
Supreme Court in United States v.
Dickinson, supra, seemed to reject the
test that a cause of action accrued
for flood and erosion damage caused
by a dam on the date a dam had com-
pletely impounded its pool. The
ruling in Dickinson places a cloud on
the vitality of the test set forth
in Court of Marion County v. United
States, supra, 53 Ct. Cl. at 150, at
least in cases where a dam impoundment
causes erosion.
Apropos to defendant's assertion
137
that plaintiffs' causes of action ac-
crued when the dam became operational,
the Supreme Court stated:
If suit must be brought, lest he
jeopardize his rights, as soon as his
land is invaded, other contingencies |
would be running against him -- for
instance, the uncertainty of the
damage and the risk of res judicata
against recovering later for damage
as yet uncertain. The source of the
entire claim -- the overflow due to
rises in the level of the river -- is
not a single event; it is continuous.
And as there is nothing in reason, so
there is nothing in legal doctrine,
to preclude the law from meeting such
a process by postponing suit until
the situation becomes stabilized. An
owner of land flooded by the Govern-
ment would not unnaturally postpone
bringing a suit against the Govern-
138
ment for the flooding until the
consequences of inundation have
so manifested themselves that a
final account may be struck. [331
U.S. at 749.]
Though the court agrees that this
language in Dickinson makes the via-
bility of the test set out in Court
of Marion County v. United States,
supra, questionable, the court does
not agree that Dickinson necessarily
requires that the riverbanks at issue
in these cases be entirely washed away
before a cause of action accrues, as
plaintiffs maintain in these cases.
The court believes that the ap-
proach following in Nadler Foundry and
Machine Co. v. United States, 143 Ct.
Cl. 92, 164 F.Supp. 249 (1958) is
proper in this case. The court in
Nadler in discussing when the statute
of limitations begins to run focused
139
On the following portion of the above-
quoted language from Dickinson v. United
States: "until the consequences of inun-
dation have so manifested themselves
that a final account may be struck."
Nadler Foundry and Machine Co. v. United
States, supra, 143 Ct. Cl. at 95, 164
F.Supp. at 251 (quoting Dickinson v.
United States, supra, 331 U.S. at 749).
The Nadler court pointed out that "the
Dickinson doctrine does not permit a
plaintiff to wait ‘until any possibility
of future damage (has) been removed.'"
143 Ct. Cl. at 95, 164 F.Supp. at 251
(quoting in part Columbia Basin Orchard
v. United States, 116 Ct. Cl. 348, 357,
88 F.Supp. 738, 739 (1950)). The court
in Nadler Foundry and Machine Co. v.
United States, supra, 143 Ct. Cl. at
95-96, 164 F.Supp. at 251, focused on
the foreseeability of damage resulting
from the defendant's activities. The
140
court concludes based on the above
case law that the proper test for
determining when the statute of
limitations began to run in these
cases is when the damage (1) mani-
fested itself so that it should have
been recognized, (2) the circum-
stances were such that the damage
as a foreseeable future event, or
(_’ that the alleged effects of the
dams' actions were fully known by
the landowners. For additional
support for this test see Lacey Vv.
United States, 219 Ct. Cl. 551, 559-
61, 595 F.2d 614, 618 (1979); Barnes
vy. United States, supra, 210 Ct. Cl.
at 480, 538 F.2d at 873; North
Counties Hydro-Electric Co. v.
United States, 138 Ct. Cl. 380, 384,
151 F.Supp. 322, cert. denied, 355
U.S. 882 (1957).
Applying the above test to the
14]
iitigants in this case it is necessary
to survey the litigants by pools. How-
ever, after reviewing the record, th
court finds it possible to make or
generalization. Many of the plaintiffs,
Or representatives who testified or
their behalf, indicated that they be-
came aware of erosion on their river-
banks shortly after the high-lift dams,
which created the pools adjacent to
their property, were installed. [In any
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ufficient to presume that some of
the erosion damage complained of would
have manifested itself.
For example, the Meldahl pool
reached its normal level by March of
1965. The earliest petition filed by
a plaintiff who owned property in the
Meldahl pool was filed on July 25 1978.
142
Based on these facts, it is necessary
to assume that no erosion damage
manifested itself on these properties
so that the plaintiffs should have
recognized it until July 25, 1972, in
order to find that plaintiffs filed
their petitions in a timely manner.
Based on the entire record the court
finds that erosion damage as alleged
by plaintiffs to have been caused by
the high-lift dams would have mani-
fested itself, if at all, before July
25, 1972, and therefore, it appears
that the claims of the plaintiffs who
owned land on the Meldahl pool are
barred by the statute of limi-
2/
éavtenes =e
42/ Plaintiffs’ expert, Fuquay, testi-
fied that the benching or terracing he ob-
served and claimed were aused by the com-
bination of the pool level increases and
wave action would manifest themselves in
2 to 5 years. Even using the outside esti-
mate of 5 years, according to Fuquay, the
143
The Markland pool achieved its
normal pool elevation in January of
1963. The earliest complaint filed by
a landowner on said pool alleging a
taking caused by erosion was filed on
July 25, 1978. That complaint was
filed over 15 years after the normal
pool level was attained. Again based
on the entire record the court finds
that the alleged erosion caused by the
Markland Dam would have manifested it-
self, by at least July 25, 1972 (over
9 years later) (see supra note 42).
Plaintiffs should have been aware of
erosion damage by that time or at least
42/ Cont'd.
benches he alleged were caused by the high-lift
dams should have been apparent on the river-
banks. Fuquay theorized that these benching
lines represented the proper ordinary high-
water mark. An OHWM is a physical fact ona
riverbank which can be determined by inspection.
See Loesch v. United States, supra, 227 Ct. Cl.
at 34, 61, 645 F.2d at 905, 925; Kelly's Creek
& N.W. R.R. Co. v. United States, 100 Ct. Cl.
144
it should have been a foreseeable
event. See Nadler Foundry and
Machine Co. v. United States, supta,
143 Ct. Cl. at 95-96, 164 F.Supp. at
251. Therefore, the court is of the
view that the claims of the Markland
pool plaintiffs are barred by the
statute of limitations.
The McAlpine Dam pool like some
of the portions of the other pools
42/ Cont'd.
396, 406-06 (1943). If Fuquay's position
is that such an OHWM should have formed in,
at most, 5 years and OHWMs are observable
physical facts then some plaintiffs should
have been aware of some of the erosion
damage at a time which would be more than
6 years prior to the filing of the earliest
complaint in these cases. Supportive of
this approach is the testimony of Charles
Leedy (10), a plaintiff in Docket No.
317-79L, who noticed erosion taking place
on his property in 1969 or 1970 (Tr. 3751).
Leedy's property was utilized extensively
by plaintiff's counsel to illustrate his
OHWM position during oral argument. Also
Elmer Lee Jones (24), a plaintiff in Docket
No. 340-78, testified he first noticed
erosion on his property in the winter of
1965 (Tr. 7097).
145
at issue presents an interesting situ-
ation. The McAlpine Dam was completed
in 1965, but it did not alter the pool
level previously established by old Dam
41 in 1927. Therefore, based solely on
pool level variations it would appear
that if any erosion was going to occur
due to either old Dam 41 or the McAlpine
Dam holding the pool level at 420 feet
m.s.l1. it would have done so between
1927 and April 14, 1972 (6 years prior
to the earliest petition filed by a
landowner on the McAlpine pool).
However, if the court assumes that
the plaintiffs, who own property ad-
jacent to the McAlpine pool, attribute
the erosion damage on their property
to the manipulation of the upstream
Markland Dam then it is necessary to
again consider the operation of the
Markland Dam. The Markland Dam, as
stated above, became completely oper-
146
ational in January of 1963. If its
operation were going to cause erosion
on the riverbanks of McAlpine pool,
the record indicates that it would
have manifested itself before April
14, 1972 (see supra note 42). There-
fore, the court is of the view that
the claims of the plaintiffs in the
McAlpine pool were not timely filed.
When the court examines the claims
of the plaintiffs in the Cannelton
and Newburgh pools the issue concern-
ing the statute of limitations is
less clear. The pool levels in the
Cannelton and Newburgh pools reached
their normal elevations in August of
1972 and January of 1975, respective-
ly. Therefore, for the most part
these pools were established at a
time that if any erosion damage was
caused by these dams it probably would
have manifested itself at a time, such
that all plaintiffs within those pools,
with the exception of eight to be dis-
cussed below, could be deemed to have
filed their complaints within the
statute of limitations time period.
As the court mentioned previousl
eight of the plaintiffs in these cases
own property within the Cannelton pool
where the pool of old Dam 43 used to be
pu
located. (Mackey and Mary Jane Knear,
Ed and Lillian Knear, Howard B. Marrs
(see supra note 6), City of West Point,
Kentucky, Harold and Julie Cunningham,
Ben Reid, Sr. (see supra note 6),
43/ It may be the case that individual
plaintiffs expressed that they had knowledge of
erosion on their property, which would commence
the running of the statute of limitations period
to expire prior to the filing of their petitions.
However, defendant's approach in developing its
Statute of limitations argument was generalized.
Plaintiffs were not questioned specifically to
determine when they first became aware of damage
on their property. Therefore, the court does
not find the evidence developed enough to dis-
miss any additional claims on the Cannelton
and Newburgh pools except those discussed
infra.
148
Benjamin and Helen Perchik, and Ben
Reid). In that area there was no pool
level increase nor had there been one
since 1929. Clearly, if the pool
level itself was going to cause ero-
sion it would have manifested such |
damage prior to April 14, 1972 (6
years prior to the earliest complaint
filing). However, if these plaintiffs
are claiming that their alleged ero-
sion was caused by the operation of
the up-stream McAlpine Dam, then it
is necessary to review the history of
said dam. The McAlpine Dam was com-
pleted in 1965. Its predecessor, old
Dam 41, was completed in 1927. Both
the old and new dams functioned in a
similar manner. Thus it appears that
the operation of the McAlpine Dam and
previous old Dam 41 would have been
affecting the properties of the above
eight plaintiffs for a sufficiently
149
long period to manifest erosion, if at
all, prior to April 14, 1972 (6 years
prior to the filing of the earliest
complaint). Even if the court focuses
solely on the operation of the McAlpine
Dam, it would appear from the record
that the manipulation of that dam would
have resulted ina manifestation of
erosion or made it a foreseeable result
prior to the April 14, 1972, since it
commenced operation in 1965 (see Supra
note 42). Therefore, the claims of the
above-cited eight plaintiffs on the
Cannelton pool are barred by the
statute of limitations.
It is at least arguable that the
Claims of the three plaintiffs with
Property on the Newburgh pool are
barred by the statute of limitations.
The Newburgh Dam was completed in
October of 1975. However, all three
of the plaintiffs with property on the
150
Newburgh pool owned land in the area
where the pool impounded by old Dam
46 previously existed. Old Dam 46
was completed in 1929. The Newburgh
pool did not alter the pool elevation
in the area of the pool created by
Old Dam 46. Therefore, based only
on pool level variations it would
appear that if any erosion was going
to occur due to either old Dam 46 or
the Newburgh Dam holding the pool
level (358 feet m.s.1l.) at the same
level it would have manifested itself
long before July 25, 1972 (6 years
prior to the earliest petition filed
by a landowner in the Newburgh pool.
However, if the court assumes
that the plaintiffs, who own property
adjacent to the Newburgh pool, attri-
bute the erosion damage on their pro-
perty to the manipulation of the up-
stream Cannelton Dam, then their
151
claims are clearly not time barred.
Cannelton Dam was not completed until
1974 though its impounded pool reached
its permanent lével in August of 1972.
Utilizing either date, the Cannelton
Dam was completed within 6 years of the
date the plaintiffs on the Newburgh
pool filed their complaints and thus,
assuming that they assert that the
Cannelton Dam caused their erosion dam,
the statute of limitations does not bar
their claims.
Based on the above discussion, the
court concludes that if it had found
that the high-lift dams were the direct
and proximate cause of some or all of
the erosion damage complained of, which
it did not, the statute of limitations
would appear to bar the claims of many
of the plaintiffs.
III.
Based upon the facts as found and
152
discussed and the conclusions of law
reached relative thereto, as set forth
in this opinion, the court concludes
that plaintiffs are not entitled to
recover in these consolidated cases,
with the result that their petitions
(complaints), five in number, are to
be dismissed.
AS3
IN THE UNITED STATES CLAIMS COURT
Nos. 161-78, 340-78, 317-79L
311-80L, and 616-80L
(Filed: May 6, 1983)
AVABELLE BASKETT, ET AL. ) Pleading and
) Practice,
) RUSCC 16,
) Motion in
) limine;
) Statute of
) limitations;
) Standing; Res
) judicata;
) Fraud, RUSCC
) 9(b), particu-
) larity and
) specificity;
) Misrepresen-
) tation, claim
) sounding in
) tort; Pretrial
) preclusion of
) proposed
)
THE UNITED STATES testimony.
Norman E. Hay, Cannelton, Indiana,
attorney of record for plaintiffs.
Charles S. Gleason, Indianapolis,
Indiana, of counsel.
Hubert M. Crean, Washington, D.C.,
with whom was Assistant Attorney General
Carol E. Dinkins, for defendant.
ORDER
LYDON, Judge: In these five con-~
“mlanat ? - ~ = _e.9 9 2 7 -
solidated cases, some 95 owners Ol
72¢C€ a a a - m + do #
some 135 tracts of land a sjyacent to
the Ohio River have sued to reco
~ ] } ~ “Ff
da aqes wnicn they audi Lec ( Cl f I
Army Corps of Engineers (Corps).
The issues are identical to those
raised by some 23 different owners
of land adjacent to the Ohio River
OD
in Loesch v. United States, 22/7 e.
Cl. 34, 645 F.2d 905, cert. denied,
454 U.S. 1099 (1981).
7 USCCR No. i8
On August 3, 1981, a pretrial
order on liability was entered in
these cases. Plaintiffs’ response
Pe
>
rex “
©
>) 4
ee .@
4
V2 +)
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ud
iimhe
7 Te
ry
156
of each county where plaintiffs' lands
are located, Directors of Soil Conser-
vation Service for each such county,
etc. Plaintiffs’ potential witness
list could easily exceed 200. Under
these circumstances both the court and
the parties are under some obligation
to make efforts to delimit the number
of trial days and to take other steps
to reduce the expense and effort
generally associated with long trials
of the duration estimated herein.
Defendant, on November 22, 1982,
filed a “Motion In Limine,” pursuant
to Rule 16 RUSCC, seeking a pretrial
order that precludes the admission of
evidence at trial with respect to the
flowage easement issue. Defendant
also filed a second “Motion In
Limine", on November 22, 1982, seek-
ing to preclude testimony by some of
plaintiffs' proposed witnesses. In
effect, defendant seeks to iimit the
they intend to produce at trial. i
tion in limine is a recognized methc
ror getting an early ruling on trial
matters. see C. Wright & A. Miller,
J C il Practi c ana Procedure, Sec.
S/, p. 193; see also Zenith Radi
Corp. v. Matsushita Elec ae. CO,, §
3° i ADD ee CC
f.-Supp. 1125, 1139-41 (E.D. Penn (19300).
Plaintiffs, on December 21, 1982 filea
a response to both motions in linine.
This response given the nature, detail,
Specificity and legal citations, sup-
porting defendant's motions in limine,
was most inadequate. Defendant's motions
were based on the pleadings, certain
mission of the parties.
There are two basic issue in these
cases. The first basic issue involves
the question of certain high-lift navi-
158
gation dams on the Ohio River are re~
sponsible for the erosion that plain-
tiffs claim is, and has been, taking
place on their properties adjacent to
the Ohio River. This will be referred
to as the erosion issue. The second
basic issue, which will be referred
to as the flowage easement issue, in-
volves the guestion of whether Corps
of Engineers personnel, or other
government personnel, committed
fraud or misrepresentation in the
acquisition of flowage easements from
plaintiffs in connection with the
construction of the dams in question.
Embraced within this broad fraud and
misrepresentation question are sub-
sidiary questions as to whether there
are serious irregularities, fraudu-
lent in nature, in the flowage ease-
ments themselves which serve to
render them void, and as to whether
ordinary high-water mark determinations
made in connection with the preparation
of the flowage easements were erroneous
nA hirc micronroc m+ 7 y nants €£$ Le
ind thus mi1srz epre sented to plaintl1ifs.
I
4 5 | - y 4 +
It 1s de 1 appro Lace. C l
a it
Fiy + is in ~y +47 7 % l Y Y f c
L2arst tnat MoticCo} 50 J 1 V l (
. Tims } € 7 4
to eliminate tne Tlowagd ( S¢ E eg ]
oy " : ,
as a lable triabl 1ssue. Thereafter,
+ + ; 4 4
attention will be given tot ond
sci J . : rh 4 c - -_
notion n limine whic! seat to pre
7 J + ir YY al »~ + > 1}
| If 7 , | a a | _
CiLUCGCEe C STIMO! y fro Ce tas : AL Lau
ct
Ls
There is no question under RUSCC 16,
that this court, as a trial court, has
the power to issue pretrial orders
Simplifying issues for trial. Not only
does this court have such power, it has
a duty to exercise it in appropriate
cases. This power allows the court,
160
inter alia, to define the issues,
facts and theories actually in con-
tention and to weed out extraneous
issues. Too, this court also has the
authority to issue pretrial rulings
concerning the admissibility at triai
of proposed testimony and documentary
evidence. 6 C. Wright and A. Miller,
Federal Practice and Procedure, Sec.
1525, at 586-589 (1971) and cases
cited therein.
In this case, defendant's first
motion in limine, which seeks to pre-
clude the admission of evidence on
the flowage easement issue 1s, in
effect, a reguest fora dispositive
pretrial ruling eliminating such an
issue from these cases. The thrust,
therefore, of defendant's first
motion is to obtain a favorable
judgment before trial on the flowage
easement issue, thereby leaving the
erosion issue as the sole issue for
able lee mn of its Rule lft
pretrial power an ay appropriate]
rule, prior to trial, on the questio
of jurisdiction, see, Nelson v. Keefer,
451 F.2d 289 (3d Cir. 1971); A.H. Emery
Co. v. Marcan Products. Corp. 389 F.2d
+9 eeagttan FiGaucets. Corp.
11, 20 (2d Cir. 1968), cert. denied,
393 U.S. 835; the legal sufficiency of
3
‘ ~~ oe ee mg a , . ee ee a) ee, ee a
a claim or defense, see American Machine
M 7 _ . R + TY Y le
& Metals, Inc. v. DeBothezat Impeller
Co., 82 F.Supp. 556 (S.D. N.Y. 1949),
aff'd, per curiam 174 F.2d 890 (2d Cir.
1949), cert. denied, 339 U.S. 979; see
also Scham v. Kolowich, 2 F.R.D. 343
(E.D. Mich. 1942); and/or the ultimate
merits of a particular claim where the
undisputed facts indicate an unequivocal
right to a judgment favoring a party.
am Warez V. Young Elec. Sign Co., -315
162
F.2d 326, 327 (10th Cir. 1963), it was
noted that: "Summary disposition of
a cause may logically and properly
follow a pretrial conference when the
pretrial procedures disclose the lack
of a disputed issue of material fact
and the facts so established indicate
an unequivocal right to judgment
favoring a party." See also, Holcomb
vy. Aetna Life Ins. Co., 255 F.2d 57/7,
(10th Cir 1958), cert. denied, 358
T.8.- 873. In Klein v. Belle Alkali
Co., 229 F.2d 658 (4th Cir. 1956),
the court held that where a judge
determined that on the pleadings and
the admitted facts there was no issue
of fact and no ground upon which
plaintiff could recover, it was per-
fectly proper that he say so and dir-
ect that proper steps be taken to dis-
pose of the case in an orderly way.
See also 3 J. Moore, Moore's Federal
163
vractice, Para. £64265" 26.02 (3d ed.
Lens ntrary to the implication
to defendant's mo=ion in limine, Rules
Of Evidence do not inhibit use of in
limine rulings. Indeed, such rulings
are encouraged in circumstances now be-
fore the court. See Zenith Radio Corp.
Vv. Matsushita Elec. Inc. CO., supra,
205 F.Supp. at 1140-1143, Accerdingly,
the genera] Purpose of Rule 16 Clearly
supports determining, as requested by
the motion in limine, whether a trial
‘on the merits of the flowage easement
issue is justified or not. See 6 Ce
Wright and A. Miller, Federal Practic
a3)
and Procedure, Sec. 1529 (1971).
: wy ae
Defendant's first motion in limine
is directed at eliminating the flowage
easement issue as a triable issue in
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