ST. BERNARD PARISH GOVERNMENT, GWENDOLYN ADAMS, HENRY ADAMS, CYNTHIA BORDELON, STEVEN BORDELON, STEVE'S MOBILE HOME AND RV REPAIR, INC., EDWARD ROBIN, SR., EDWARD "PETE" ROBIN, JR., BRAD ROBIN, ROBIN SEAFOOD COMPANY, INC., ROBIN YSCLOSKEY DEVELOPMENT #1, LLC, ROBIN YSCLOSKEY DEVELOPMENT #2, LLC, ROBIN YSCLOSKEY DEVELOPMENT #3, LLC, ROBIN YSCLOSKEY DEVELOPMENT #4, LLC, ROCCO TOMMASEO, TOMMOSO "TOMMY" TOMMASEO, ROCKY AND CARLO, INC., PORT SHIP SERVICE, INC., AND OTHER OWNERS OF REAL PROPERTY IN ST. BERNARD PARISH OR THE LOWER NINTHWARD OF THE CITY OF NEW ORLEANS, Plaintiffs-Cross-Appellants
UNITED STATES, Defendant-Appellant
Appeals from the United States Court of Federal Claims in No.
1:05-cv-01119-SGB, Chief Judge Susan G. Braden.
Charles J. Cooper, Cooper & Kirk, PLLC, Washington, DC,
argued for plaintiffs-cross-appellants. Also represented by
Brian W. Barnes, Vincent J. Colatriano, Michael W. Kirk,
William C. Marra; Carlos A. Zelaya, II, Mumphrey Law Firm,
LLC, Chal-mette, LA.
Halligan Fletcher, Office of the Solicitor General, United
States Department of Justice, Washington, DC, argued for
defendant-appellant. Also represented by John C. Cruden,
Brian C. Toth, Environment and Natural Resources Division,
United States Department of Justice, Washington, DC.
F. Hearne, II, Arent Fox, LLP, Clayton, MO, for amici curiae
National Federation of Independent Business Small Business
Legal Center, Reason Foundation, Southeastern Legal
Foundation, Property Rights Foundation of America, Inc.,
National Association of Reversionary Property Owners, James
W. Ely, Jr. Also represented by Stephen Sharp Davis, Meghan
Newman, Lourie, and Dyk, Circuit Judges.
Bernard Parish Government and various other owners of real
property in St. Bernard Parish or in the Lower Ninth Ward of
the City of New Orleans (collectively "plaintiffs")
brought suit in the Court of Federal Claims ("Claims
Court") under the Tucker Act, 28 U.S.C. §
1491(a)(1), alleging a taking. They claimed that the
government was liable for flood damage to their properties
caused by Hurricane Katrina and other hurricanes.
Plaintiffs' theory was that the government incurred
liability because of government inaction, including the
failure to properly maintain or to modify the Mississippi
River-Gulf Outlet ("MRGO") channel, and government
action (the construction and operation of the MRGO channel).
The Claims Court found a taking occurred and awarded
compensation. The government appeals, and plaintiffs
cross-appeal alleging that the Claims Court's
compensation award was inadequate.
conclude that the government cannot be liable on a takings
theory for inaction and that the government action in
constructing and operating MRGO was not shown to have been
the cause of the flooding. This is so because both the
plaintiffs and the Claims Court failed to apply the correct
legal standard, which required that the causation analysis
account for government flood control projects that reduced
the risk of flooding. There was accordingly a failure of
proof on a key legal issue. We reverse.
Orleans has a long history of flooding. The geographic
location of the city makes it "particularly vulnerable
to hurricanes." J.A. 25035. The city was hit by major
storms in 1909 and 1915, and much of the city flooded due to
the Fort Lauderdale Hurricane in 1947. In 1955, Congress
authorized the Army Corps of Engineers ("Corps") to
study the need for additional hurricane protection in the
Lake Ponchartrain area. This resulted in a comprehensive
report known as the "Barrier Plan, " which
recommended a system of floodgates, levees, and floodwalls to
protect the area from hurricanes.
1956, Congress authorized the Corps to construct the MRGO
navigation channel in New Orleans. The purpose of the channel
was to increase commerce by providing a direct connection
between the port of New Orleans and the Gulf of Mexico.
Construction was completed in 1968.
allege that over the course of the next several decades, the
construction, operation, and improper maintenance of the MRGO
channel caused various adverse impacts that increased storm
surge along the channel as follows. The construction,
operation, and failure to maintain MRGO increased salinity in
the water by providing a direct route for salt water to flow
into the area from the Gulf of Mexico. The saltwater changed
the character of the marshes and destroyed wetlands in the
area that previously acted as a natural buffer against
flooding. Moreover, the "failure of the Army Corps to
maintain the banks" caused erosion along the banks,
which allowed more water to pass through the channel at
higher velocities. MRGO also created the potential for a
funnel effect, which increased flooding during storms by
compressing storm surge into the channel and causing it to
rise faster and higher.
1965, while MRGO was still under construction, Congress
authorized funding to implement the Barrier Plan through the
Lake Pontchartrain and Vicinity Hurricane Protection Project
("LPV project") to control flooding resulting from
hurricanes. See Flood Control Act of 1965, Pub. L.
No. 89-298, 79 Stat. 1073, 1077 (1965). At an estimated cost
of approximately $56 million ($447 million in today's
money), the LPV project included construction of levees and
floodwalls in the St. Bernard basin along the banks of MRGO
utilizing dredged material from the MRGO channel. The levee
system was designed to, and did, reduce the risk of flooding
in New Orleans, including specifically along the banks of
MRGO. Construction began around the same time that
construction of MRGO was concluding.
own properties located in the St. Bernard Parish and Lower
Ninth Ward areas. These properties were catastrophically
flooded during Hurricane Katrina in 2005. Hurricane Katrina
was "one of the most devastating hurricanes that has
ever hit the United States, generating the largest storm
surge elevations in the history of the United States."
In re Katrina Canal Breaches Consol. Litig., 647
F.Supp.2d 644, 678 (E.D. La. 2009), aff'd in part,
rev'd in part, 696 F.3d 436 (5th Cir. 2012). Storm
surge is a "wind generated process, " so "a
storm of such intensity creates an immense storm surge."
Id. at 679. During Hurricane Katrina, as a result of
the storm surge, levees from the LPV project around St.
Bernard Parish and the Lower Ninth Ward breached,
contributing to flooding in the area. Increased storm surge
also contributed to subsequent damage from other hurricanes.
brought an action in the Claims Court under the Tucker Act,
alleging that construction and operation of MRGO and failure
to properly maintain or modify it constituted a taking by
causing flooding damage to their properties. Plaintiffs made
no effort to show that the combination of MRGO and the LPV
levees caused more flooding than would have occurred without
any government action, arguing that the court should limit
its consideration to MRGO in isolation.
bench trial in December 2011, the Claims Court held that a
temporary taking occurred. The Claims Court found, as
plaintiffs alleged, that a causal link existed between
increased storm surge and MRGO. The construction of,
continued operation of, and failure to maintain or modify
MRGO caused erosion, increased salinity, wetlands loss, and a
funnel effect, which in turn caused increased storm surge.
The Claims Court found that "the substantially increased
storm surge-induced flooding of Plaintiffs' properties
that occurred during Hurricane Katrina and subsequent
hurricanes and severe storms was the direct result of the
Army Corps' cumulative actions, omissions, and policies
regarding the MR-GO that occurred over an extended period of
time." St. Bernard Par. Gov't v. United
States, 121 Fed.Cl. 687, 741 (2015); see also
id. at 745 ("The evidence in this case established
that the substantial increase in storm surge and flooding was
the 'direct, natural or probabl[e] result' of the
construction, expansions, operation, and failure to maintain
the MR-GO."). The plaintiffs presented no evidence, and
the Claims Court made no findings, as to whether the
combination of these MRGO-related effects and the LPV levees
caused flooding on plaintiffs' properties greater than
would have occurred had the government engaged in no action
Claims Court also determined that these environmental effects
were foreseeable at least by 2004. The Claims Court found
that "it was foreseeable to the Army Corps that the
construction, expansions, operation, and failure to maintain
the MR-GO would increase salinity, increase habitat/land
loss, increase erosion, and increase storm surge that could
be exacerbated by a 'funnel effect' and likely cause
flooding of Plaintiffs' properties in a hurricane or
severe storm." Id. at 723.
separate trial on compensation in November 2013, the Claims
Court awarded compensation of $5.46 million based primarily
on the replacement cost of improvements to the properties and
lost rental value during the temporary taking period. The
Claims Court also sua sponte awarded lost real-estate taxes
to the New Orleans city government, a non-party. The Claims
Court then certified a class under Court of Federal Claims
Rule 23(a) for purposes of liability and two subclasses for
purposes of just compensation.
government appeals both the finding of liability and the
compensation award. Plaintiffs cross-appeal the amount of the
compensation award. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(3).
a taking under the Fifth Amendment has occurred is a question
of law with factual underpinnings. Ridge Line, Inc. v.
United States, 346 F.3d 1346, 1352 (Fed. Cir. 2003). We
review the trial court's legal ...