              United States Court of Federal Claims
                             No. 14-304 L, 14-1120 L
                              Filed: January 10, 2019
______________________________________
                                          )
ALFORD ET AL.,                            )
                                          )
            Plaintiff,                    )
                                          )
            v.                            )
                                          )
THE UNITED STATES,                        )
                                          )
            Defendant.                    )
______________________________________ )

Sheldon G. Alston, Brunini, Grantham, et al., Jackson, Mississippi, attorney for plaintiffs.

Barrett Blake Teller, Teller Hassel and Hopson, LLP, Vicksburg, Mississippi, attorney for
consolidated plaintiff.

William James Shapiro, United States Department of Justice, Environmental & Natural
Resources Division, Sacramento, California, attorney for defendant.

                                    OPINION AND ORDER

SMITH, Senior Judge

        This action comes before the Court following trial held from January 25, 2018, until
February 1, 2018. Plaintiffs own properties surrounding Eagle Lake and brought this Complaint
against the Army Corps of Engineers (“Corps”) for damage to their individual properties after
the flooding of Eagle Lake. See generally Amended Complaint (hereinafter “Compl.”).
Plaintiffs filed their Post-Trial Briefs on April 10, 2018, seeking $374,973.50 in damages from
defendant. See generally Plaintiffs’ Post-Trial Brief (hereinafter “Pls.’ Brief”). Defendant filed
its Post-Trial Brief on May 25, 2018, disputing plaintiffs’ allegations. See generally Defendant’s
Post-Trial Brief (hereinafter “Def.’s Brief”). For the reasons set forth below, the Court rules in
favor of plaintiffs and awards plaintiffs, collectively, $168,000, plus interest, in damages.

   I.      Background

        This case is somewhat unique but based on a fairly simple set of facts. Plaintiffs owned
property on Eagle Lake, an oxbow lake located about fifteen miles from Vicksburg, Mississippi.
See Joint Exhibit (hereinafter “Joint Ex.”) 46 at 12; Defendant’s Exhibit (hereinafter “Def. Ex.”)
40 at 10; Trial Transcript (hereinafter “Tr.”) 57:1–3. In 2000, the Corps and various state
agencies signed the Eagle Lake Water Level Management Agreement (“Eagle Lake
Agreement”), setting a schedule for raising and lowering the water level in Eagle Lake. Joint Ex.
80. The Eagle Lake Agreement specified that the water levels in the Lake be kept between 70
feet and 76.9 feet. Id.; Tr. 143:6–8. The predictable water levels in Eagle Lake allowed
residents to build piers, boat houses, and docks extending out from the shore. See Tr. 143:12–19.

         On April 28, 2011, the Corps approved a proposal to raise the water levels in Eagle Lake
to over 90 feet. Joint Ex. 163. The flooding of Eagle Lake destroyed many of plaintiffs’ piers,
boathouses, and docks, costing plaintiffs many thousands of dollars. Pls.’ Brief at 7–9.1
Initially, after the flood damage, the Corps distributed claim forms to plaintiffs. See, e.g., Joint
Ex. 31. The government, however, denied compensation for those claims. See, e.g., Joint Ex.
30. As a result, this action ensued.

        The reason the government took the flooding action goes back over a year before the
government flooded Eagle Lake. See Joint Ex. 95 at 1–2. In February of 2010, sand boils2 were
found on property adjacent to the levee in the Buck Chute area, which was part of the Mississippi
River levee system. Pls.’ Brief at 5; Tr. 840:8–20. These sand boils indicated that the levee was
being undercut by pressure from the river and might break, flooding a very large area of about a
million acres and possibly between four thousand to six thousand homes and businesses. Tr.
292:14–18, 1309:14–22, 1441:11–14; Joint Ex. 78; Joint Ex. 156.

        The Corps studied the sand boils and the area adjacent to the levee for more than a year.
See Tr. 1003:16–19. In 2011, very wet weather caused an unusual level for the annual flood
stage of the river. Water pressures were raised to a dangerous level against the levee. Tr.
856:16–20. The Corps’ experts determined that raising the Lake to more than 90 feet would
counteract the pressure and likely preserve the levee. See Joint Ex. 163. A decision was made to
raise the Lake, knowing plaintiffs’ properties would be damaged. Id. Experts projected that the
likelihood of breach was over 95% before the Corps flooded Eagle Lake. Joint Ex. 72 at 51;



1
       Citing, inter alia, real estate appraisal expert Robert L. Crook’s just compensation
opinions on plaintiffs’ properties. See Joint Ex. 42; Joint Ex. 46; Joint Ex. 47.
2
       As explained by Dr. Shewbridge,

       A sand boil is a bubbling spring of water sometimes several feet in diameter that
       bursts through the ground often near the land-side toe of a levee. Fast flowing
       water from the spring can cause migration of sand and silt from the underlying
       aquifer, causing it to “boil” out of the ground, which in turn can result in the
       formation of a void or “pipe” below the boil. If a pipe forms and progresses
       through the aquifer to the river and continues to enlarge from erosion, it can
       eventually cause a collapse of the overlying levee embankment, leading to
       land-side slope instability, overtopping erosion and subsequent breach of the
       levee. This is referred to as “Backwards Erosion Piping.”

Def. Ex. 40 at 14.
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Joint Ex. 85 at 45:10–23; Def. Ex. 40 at 30; Tr. 1057:4–1062:1, 1084:19–1085:5, 1438:21–25.
Plaintiffs do not challenge this evidence.

   II.      Discussion

        The Takings Clause of the Fifth Amendment of the Constitution prohibits the United
States government from taking private property for public use without “just compensation.” U.S.
Const. amend. V. “A compensable taking of property occurs when society imposes a burden on
an individual’s property which, in fairness and justice, society itself should bear.” Bassett v.
United States, 55 Fed. Cl. 63, 67 (2002). This Court’s jurisdictional grant provides it with the
power to decide claims based on the Takings Clause of the Fifth Amendment.

         A. Liability

        As a principle, the right to control one’s private property is paramount to the existence of
our Nation. A government should strive to protect, rather than destroy personal property. JOHN
LOCKE, TWO TREATISES ON GOVERNMENT §§ 124, 201, 222. The Court must analyze takings
claims regardless of the consequences to governmental policy. See Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 426 (1982) (“[A] permanent physical occupation
authorized by government is a taking without regard to the public interests that it may serve.”).
“Our jurisprudence involving condemnations and physical takings is as old as the Republic and,
for the most part, involves the straightforward application of per se rules.” Tahoe-Sierra Pres.
Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 322 (2002).

        It is clear in this case that the government knowingly took action that destroyed some of
the plaintiffs’ property, and that this was done for a public purpose. It is also clear the property,
the docks, piers, and boathouses were destroyed by the government’s action. Thus, the only
issue remaining before this Court is whether the government is required to compensate plaintiffs
for their loss. The government has two principle arguments for why compensation is not
required in this case. The first is that the action taken by the Corps was in an emergency
situation triggering the doctrine of necessity. The doctrine of necessity presupposes an almost
instantaneous decision to act. See Trin-Co Inv. Co. v. United States, 130 Fed. Cl. 592, 599
(2017). Here the Court finds that the facts do not meet the conditions required for the doctrine of
necessity to apply. The Corps was aware of the sand boils and potential dangers for over a year
before ultimately flooding Eagle Lake. In fact, the government carefully analyzed its options
and chose the most cost effective one to immediately reduce the likelihood of a levee breach.

        The government considered its options carefully and deliberately over a period of more
than a year, from early in 2010 to Spring of 2011. It chose the most effective and cost-efficient
way of dealing with the problem. The flooding of Eagle Lake served as a temporary stay of the
danger while a more permanent solution at a cost of $2.7 million occurred after the Mississippi
River’s flood stage abated. If this kind of “emergency” justifies an exemption from the Taking


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clause of the Fifth Amendment, then many large government projects would similarly be
insulated when private land or resources are needed.

         The government’s second argument is that the doctrine of relative benefits applies, as the
plaintiffs are in a better position than they would have been if the levee had breached. It is
certainly true that in the hypothetical world where the breach occurred, the plaintiffs would have
been far worse off, along with 10,000 other citizens. In the real world, however, all 10,000 other
citizens were unaffected, but the plaintiffs’ properties were significantly damaged. The
government is applying a hypothetical situation to discount the harm plaintiffs suffered in the
real world. The central purpose of the Fifth Amendment is to ensure that discrete minorities do
not bear the burden of benefits to the general public. Few cases present this problem as starkly
as this case. “The Takings Clause is ‘designed to bar Government from forcing some people
alone to bear public burdens which, in all fairness and justice, should be borne by the public as a
whole.’” Ark. Game & Fish Comm’n v. United States, 568 U.S. 23, 31 (2012) (quoting
Armstrong v. United States, 364 U.S. 40, 49 (1960)).

        Of course, it has long been a principle that a fire department, during times of fire, may
knock down your property without compensation to stop the flames from engulfing more of the
city. See generally Respublica v. Sparhawk, 1 U.S. 357, 363 (1788). This is an old concept.
Here, of course, the problem (our fire analogue) began over a year before the “knock down” or
Lake flooding. The government studied the problem for a long time, and experts recommended
a solution. The government thought about the solution for quite a while, and determined it was
an efficient way to solve the problem, with the exception of damaging plaintiffs’ properties.
This was economically efficient and resulted in significant benefits. Plaintiffs only ask that they
are compensated for their loss, which helped procure those benefits.

         The government makes another series of arguments that compensation should not be
awarded under the Fifth Amendment. It argues that plaintiffs’ received benefits from the
government’s actions. There are really two benefit arguments. First there is the general benefit
that comes from either the government’s building of the levee system or the operation of the
Muddy Bayou Control Structure. It is certainly true that these structures benefitted the plaintiffs,
most of the Mississippi Delta population, and the region’s economy. However, one should not
stop there. The United States’ military keeps the region from being overrun by foreign
governments and perhaps pirates. Government programs benefit all citizens in various ways. If
the benefits citizens get from the federal government are to be put on the scale in a taking case,
the citizen would always lose, particularly anywhere along the several thousand miles of the
Mississippi River system.

        The second version of the government’s argument presents a more serious question. If
the levee had broken, would plaintiffs have suffered more serious damage than they actually did?
It seems to this Court that the answer is clearly yes! Plaintiffs’ property would have been totally
inundated, not just the piers and boat houses. However, the Court will not conflate the real world
with a theoretical one. The levee did not break. A million acres were dry and snug. People

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were not in wet houses sweeping out mud, but enjoying their normal life. They had no damage
to their property. Only this small band of plaintiffs had damage. Thus, the government argues
that the damage plaintiffs would have suffered in this never-was world must offset the damage
actually inflicted upon this group of plaintiffs in the real world. This argument seems to turn the
Fifth Amendment on its head.

       B. Damages

         The Takings Clause of the Fifth Amendment provides just compensation as the exclusive
remedy. “The guiding principle of just compensation is reimbursement to the owner for the
property interest taken.” United States v. Va. Elec. & Power Co., 365 U.S. 624, 633 (1961).
Landowners are entitled to the fair market value of their land, which is “‘what a willing buyer
would pay in cash to a willing seller’ at the time of the taking.” United States v. 564.54 Acres of
Land, 441 U.S. 506, 511 (1979) (quoting United States v. Miller, 317 U.S. 369, 374 (1943)).
“[I]n the easement context, the conventional method of valuation is the before-and-after method,
i.e., the difference between the value of the property before and after the Government’s easement
was imposed.” Rasmuson v. United States, 807 F.3d 1343, 1345 (Fed. Cir. 2015).

        The Court finds that a “before-and-after” Fair Market Value method of calculation for
each plaintiff’s property should be used to determine just compensation. However, the Court
finds that the “before” calculation should not rely on the hypothetical expectation that the levee
would have breached. Accordingly, the Court finds that the “before” calculation should be the
value of the property immediately before the flooding of Eagle Lake. For these valuations, the
Court bases its just compensation award on Mr. Parker’s findings.

        Plaintiffs and defendant submitted damage calculations in their Post-Trial Briefs relying
on different expert witness opinions. See generally Joint Exs. 42, 43, 46, 47; see also Joint Exs.
156, 157, 158; Tr. 1535:4. Defendant’s and plaintiffs’ figures calculated the damages to each
individual plaintiff’s property. See generally Joint Exs. 42, 43, 46, 47. Plaintiffs’ damages
calculations were performed by plaintiffs’ real estate appraisal expert, Robert Crook (“Mr.
Crook”), in 2016. See Pls.’ Brief at 22. For each individual property, Mr. Crook calculated the
difference in the Fair Market Value of the property before the flood and the Fair Market Value of
the property after the flood. See id. During his appraisal, Mr. Crook discovered the following
valuations for damages to plaintiffs’ properties. First, Mr. Crook found that the Fair Market
Value of the damage to the Alford property was $26,000. See Joint Ex. 42. The damage to the
Wilson property was found to be in the amount of $19,400. See Joint Ex. 43. In addition to
damages allocated to the Wilsons’ residential property, the Wilsons claim $36,404 in lost profits
from their business due to the flooding. See id. Next, Mr. Crook determined that the just
compensation due to the Brinkmanns was $71,500. See Joint Ex. 46. Mr. Crook also evaluated
the property owned by Eagle Lake View Properties, LLC of which Kelly MacNealy is the
managing member. See Joint Ex. 47. For the Eagle Lake View Property, Mr. Crook utilized the
sales comparison approach in determining the “before” market value of the property, which
relies on the “highest and best value” use of the property in determining valuation. See Joint Ex.

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        Accordingly, the Court awards plaintiffs $168,000 plus interest, using the interest
calculations set forth in the Declaration of Takings Act from April 30, 2011 until the date of
payment. See 40 U.S.C. § 3116. The parties are directed to submit, within sixty days, a
stipulation as to the interest at the end of the sixty-day period, as well as attorneys’ fees pursuant
to the Uniform Relocation Act.

   III.     Conclusion

        For the reasons set forth above, plaintiffs are awarded $168,000 plus interest. The Court
directs the Clerk of Court to enter judgment in favor of plaintiffs, consistent with this Order.

          IT IS SO ORDERED.


                                                      s/   Loren A. Smith
                                                      Loren A. Smith,
                                                      Senior Judge




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