                                      CORRECTED

            In the United States Court of Federal Claims
                                         No. 18-1099C
                                   Filed: November 20, 2019

                                              )
 RIVERVIEW FARMS, et al.,                     )
                                              )
                    Plaintiffs,               )
                                              )
 v.                                           )
                                              )
 THE UNITED STATES,                           )
                                              )
                   Defendant.                 )
                                              )
                                              )

Ethan A. Flint, Flint Law Firm, LLC, Edwardsville, IL, for plaintiffs, with whom was Adam M.
Riley, Flint Law Firm, LLC, Edwardsville, IL, of counsel.

Edward C. Thomas, IV, National Resources Section, Environment and National Resources
Division, U.S. Department of Justice, Washington, D.C., for defendant, with whom were
Brigman L. Harman and Dustin J. Weisman, National Resources Section, Environment and
National Resources Division, U.S. Department of Justice, Washington, D.C., of counsel.

                                   OPINION AND ORDER

HERTLING, Judge

        The plaintiffs in this fifth amendment takings case own land in Kentucky, Illinois, and
Missouri, that is allegedly subject to flooding from the Mississippi and Ohio Rivers. They allege
that the United States took their land without just compensation because it has constructed river-
training structures and dams, which have started to cause atypical flooding. The United States
moved to dismiss the action under Rules 12(b)(1) and 12(b)(6) of the Rules of the Court of
Federal Claims (“RCFC”). The government argues that the plaintiffs’ claims, if true, are time-
barred, and alternatively, that the Amended Complaint fails to state a claim for a taking. For the
reasons explained below, the Court defers the government’s motion to dismiss for lack of subject
matter jurisdiction and denies the government’s motion to dismiss for failure to state a claim.

I.     BACKGROUND

       A.      Legal Background

        The government’s motion to dismiss for lack of subject-matter jurisdiction turns on when
a taking occurs. That is a highly factual inquiry, but one that requires an understanding of the
Tucker Act’s claim-accrual and statute-of-limitations principles.
        The government’s motion to dismiss for lack of subject-matter jurisdiction turns on when
a taking occurs. That is a highly factual inquiry, but one that requires an understanding of the
Tucker Act’s claim-accrual and statute-of-limitations principles.

       As a threshold matter, the Takings Clause of the fifth amendment of the United States
Constitution provides that “private property [shall not] be taken for public use, without just
compensation.” U.S. Const. amend. V. The Federal Circuit has established a two-part test for
whether a plaintiff is owed compensation for a taking: “[f]irst, as a threshold matter, . . .
whether the claimant has established a property interest for the purposes of the fifth
amendment[;]” and “[s]econd, after having identified a valid property interest, . . . whether the
government action amounted to a compensable taking of that property interest.” Huntleigh USA
Corp. v. United States, 525 F.3d 1370, 1377-78 (Fed. Cir. 2008).

        The Tucker Act waives sovereign immunity for certain claims against the United States,
including fifth amendment takings claims. See 28 U.S.C. § 1491; see also United States v.
Sherwood, 312 U.S. 584, 586 (1941). The waiver of immunity “may not be inferred, but must be
‘unequivocally expressed.’” United States v. White Mountain Apache Tribe, 537 U.S. 465, 472
(2003) (quoting United States v. Mitchell, 445 U.S. 535, 538 (1980)). When any statutory
waiver of sovereign immunity includes a statute of limitations, “‘the limitations provision
constitutes a condition on the waiver of sovereign immunity.’” Yankton Cty., South Dakota v.
United States, 135 Fed. Cl. 620, 628 (2017), aff’d, 753 F. App’x 905 (Fed. Cir. 2019), cert.
denied sub nom. Yankton Cty., S.D. v. United States, No. 18-1417, 2019 WL 4921357 (U.S. Oct.
7, 2019) (quoting Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287
(1983)).

        Under the Tucker Act, monetary claims against the United States must be brought within
six years from the date the claim accrued. See 28 U.S.C. § 2501. In general, a claim accrues
“when all the events have occurred that fix the alleged liability of the government and entitle the
claimant to institute an action.” Ingrum v. United States, 560 F.3d 1311, 1314 (Fed. Cir. 2009).
Under the stabilization doctrine, however, the Supreme Court has recognized that “the statute of
limitations d[oes] not bar an action under the Tucker Act for a taking by flooding when it [is]
uncertain at what stage in the flooding operation the land had become appropriated for public
use.” United States v. Dow, 357 U.S. 17, 27 (1958); see also United States v. Dickinson, 331
U.S. 745, 747 (1947) (developing the stabilization doctrine). In such instances, the statute of
limitations is tolled until the claim stabilizes, which is when “it becomes clear that the gradual
process set into motion by the government has effected a permanent taking[.]” Boling v. United
States, 220 F.3d 1365, 1370-71 (Fed. Cir. 2000).

       The stabilization doctrine is not an exception to the general rules of claim accrual; it is
another type of claim accrual. Id. at 1371. The doctrine recognizes both that takings by flooding
or gradual processes cannot be as readily ascertained as a taking by one event, but also that the
Tucker Act’s statute of limitations requires some line-drawing.

        In a takings case involving flooding after riparian changes and new groundwater retention
practices in California’s Central Valley, the Court of Claims, the Federal Circuit’s predecessor
court, acknowledged that a broad interpretation of the stabilization doctrine would be in
“unending conflict with the statute of limitations.” Gustine Land & Cattle Co. v. United States,

                                               -2-
174 Ct. Cl. 556, 656-57 (1966). The application of the doctrine means that stabilization often
occurs before “the damages are complete and fully calculable.” See Mildenberger v. United
States, 643 F.3d 938, 946 (Fed. Cir. 2011) (takings claim time barred when plaintiffs postponed
suit until damages complete). In this case before the Court, a taking occurred, and the statute of
limitations began to run when it became clear that the gradual pattern of intermittent flooding
had effected a permanent taking.

       B.      Factual Background

               1.      The Plaintiffs

        The plaintiffs in this action are landowners, including farmers and owners of recreational
land, in Kentucky, Illinois and Missouri. They allege that their land has been taken due to
flooding of the Mississippi and Ohio Rivers. Although neither the Complaint nor the Amended
Complaint provide exact addresses for the majority of the plaintiffs, the information in the
Amended Complaint discloses that the plaintiffs’ properties are relatively equally split between
the Lower Ohio River and the Lower Mississippi River, south of the confluence of the
Mississippi and Ohio Rivers at Cairo, Illinois. 1 The map below shows the area where the
plaintiffs’ properties appear to be:




1
  Several plaintiffs’ properties were only identified by a street, town or county. Other plaintiffs’
properties were more readily identifiable because their properties were denoted by intersections,
road boundaries, or exact addresses. One plaintiff’s property appears to be located near the
Tennessee River. The plaintiffs did not make any allegations, either in their complaint or
response to the government’s motion to dismiss, about the Tennessee River.

                                                -3-
(See Defendant’s Motion to Dismiss (“Def. Mot.”), Ex. 3 at Ex. A, ECF 36-3 (map of Ohio
River, Mississippi River, and Tennessee River, showing the Birds Point-New Madrid Floodway
on the Mississippi River and the Barkley Dam and Kentucky Dam on the Tennessee and
Cumberland Rivers, tributaries of the Ohio River).)

       For the purpose of this opinion, the Court considers the plaintiffs in two groups: the
Mississippi River plaintiffs and the Ohio River plaintiffs.

               2.      Navigation Improvements, River-Training Structures and Flooding

        Although both the Mississippi and Ohio Rivers have a long history of flooding, the
actions taken by the U.S. Army Corps of Engineers (“Corps”) have differed on each river. Since
the nineteenth century, the Corps has been changing the flow of the Mississippi and Ohio Rivers
to mitigate the impacts of flooding and improve navigability through “river training” or “river
manipulation.” (Amended Complaint (“Am. Compl.”) ¶ 2, ECF 10; see also Defendant’s
Motion to Dismiss (“Def. Mot.”), Ex. 3, Ex. A at 29, ECF 36-3.)

        Insofar as relevant, the Corps manages sections of the Mississippi and Ohio Rivers as
follows: (1) the Middle Mississippi River (“MMR”), from the confluence with the Missouri
River to the confluence with the Ohio River at Cairo, Illinois; (2) the Lower Mississippi River
(“LMR”), from the confluence of the Ohio River to the Gulf of Mexico; and (3) the Lower Ohio
River (“LOR”), from the Smithland Lock and Dam to the confluence with the Mississippi River
at Cairo, Illinois. (Def. Mot. at 3, ECF 36.)

                           a. Mississippi River

        Since 1824, Congress has mandated navigation and flood-mitigation improvements to the
Mississippi River. 2 Beginning in 1910, Congress authorized the use of river-training structures,
which reduce expenditures and minimize maintenance dredging by “re-directing the river’s
energy to achieve a desired velocity and/or scour pattern to deepen or provide better alignment
for the navigation channel.” (Def. Mot., Ex. 1 at 5, ECF No. 36-1.) The purpose of such
structures is to “constrict the river channel, concentrate flow, redirect sediment, and deepen and
maintain the navigable portion of the channel.” (Am. Compl. ¶ 169, ECF 10.) The types of
river-training structures at issue in this case are pictured below, clockwise, starting at the upper
right: wing dikes, bendway weirs, W-dikes, S-dikes (a.k.a. Z-dikes), and chevron dikes.




2
 See, e.g., Rivers & Harbors Act of 1824, 18 Cong. Ch. 140, 4 Stat. 32, 33; Act of June 10,
1872, 42 Cong. Ch. 415, 17 Stat. 347; Act of Mar. 3, 1873, 42 Cong. Ch. 233, 17 Stat. 560; Act
of June 25, 1910, Pub. L. No. 61-264 36 Stat. 630, 654, 658-59; Act of Mar. 4, 1913, Pub. L. No.
62-241, 37 Stat. 801; Act of Mar. 2, 1913, Pub. L. No. 62-429, 37 Stat. 725; Act of July 27,
1916, Pub L. No. 64-168, 39 Stat. 391; Rivers & Harbors Act of Jan. 21, 1927, Pub. L. No. 69-
560, 44 Stat. 1010, 1012-13 (the “1927 Act”).
                                                -4-
(Def. Mot., Ex. 8 at Exs. E, J, G, H, F, ECF 36-8.)

        During the twentieth century and continuing into the present, the Mississippi River has
experienced several especially severe floods, including in 1926 and 1927, 1973, 1993, 2011 and
2016. In 1926 and early 1927, the River flooded, inundating approximately 26,000 square miles
in the Lower Mississippi Valley. This historic flooding displaced 600,000 people and killed 250.
(Def. Mot., Ex. 3 at IV-4, ECF 36-3.) In response to that flood, in January 1927, Congress
authorized river manipulation on the Mississippi River through the Rivers and Harbors Act of
1927 (“1927 Act”). 3 According to the plaintiffs, the 1927 Act “authorized the establishment of a
navigable channel 300 feet wide and at least nine feet deep on the Middle Mississippi River[.]”
(Am. Compl. ¶¶ 165-66, ECF 10 (citing the 1927 Act).)

       Congress further responded to the 1927 flood with the 1928 Flood Control Act. Pub. L.
No. 70-391, 45 Stat. 534; codified at 33 U.S.C. § 702a. The 1928 Flood Control Act authorized
a system of levees, floodways, spillways, and bank-stabilization measures to mitigate flooding
throughout the Mississippi River Valley, including the Birds Point-New Madrid Floodway,
located south of the confluence of the Ohio and Mississippi Rivers between Birds Point,
Missouri and New Madrid, Missouri.

        In 1973, the Mississippi River flooded in the areas where the plaintiffs own land. (Am.
Compl. ¶ 197, ECF 10; Def. Mot. at 8, ECF 36.) The 1973 flood “is documented as having [had]
significant impacts on the morphology of the MMR.” (Def. Mot., Ex. 1 at A-4, ECF 36-1.)




3
    Rivers & Harbors Act of Jan. 21, 1927, Pub. L. No. 69-560, 44 Stat. 1010.
                                                -5-
After the 1973 flood, “there were no increasing [river] stage[ 4] trends for within-bank flows at
any of the [river] gages.” 5 (Id.)

        Starting in the 1980s and 1990s, the Corps began to shift away from dredging as a means
of navigational maintenance. (Am. Compl. ¶¶ 174-76, ECF 10.) Instead, the Corps developed
new river-training structures, including bendway weirs, which are “[t]otally submerged stone
weirs along the outside of a river bend[.]” (Id. ¶ 179.) The Corps built 40,000 linear feet of
dikes and bendway weirs on the MMR between 1990-93, and as of 2012, “at least 182 bendway
weirs” had been constructed in the same stretch, “with a cumulative length of at least 119,865
linear feet.” (Id. ¶¶ 180-82.) The Corps also built chevron dikes, additional wing dikes, and W-
and S-dikes. (See Def. Mot. at 7, ECF 36; Am. Comp. ¶¶ 183-86, ECF 10.) The Corps built “23
chevron [dikes] in the Middle Mississippi River” between 2003 and 2010. (Am. Compl. ¶ 188,
ECF 10.)

        There are currently nearly 1600 river-training structures in the MMR. (Def. Mot., Ex. 5
at Ex. C at 10, ECF 36-5.) The majority of these river-training structures were built in the early
to mid-twentieth century. (Def. Mot. at 7, ECF 10.) Further, 91 percent of these structures were
in place by 2000. (Def. Mot., Ex. 8 at Ex. C, ECF 36-8 at 8; Def. Mot., Ex. 9 at Ex. L at 28, ECF
36-9.) Similarly, more than 82 percent of bendway weirs were already in place by 2000. (Def.
Mot., Ex. 8 at Ex. D, ECF 36-8.)

       The LMR has a similar story: 96 percent of river-training structures in that section of the
River had been built by 2000. (Def. Mot., Ex. 9 at Ex. K, ECF 36-9.)

        A 2000 U.S. Fish and Wildlife Service publication, “Biological Opinion for the
Operation and Maintenance of the 9-Foot Navigation Chanel on the Upper Mississippi River
System,” noted that changes to the MMR’s natural hydrography had resulted in drier river banks
and reduced water-surface elevations at low-discharge levels. (Plaintiffs’ Response (“Pls.’
Resp.”), Ex. 2 at 63, ECF 37-2.) The opinion also noted that “the number of days water
elevations are above flood stage” had increased. 6 (Id.)

        From 2003 to 2011, several news articles covered the Corps’ changes to the Mississippi
River, including river-training structures, and their potential impact on flooding. On July 30,
2003, the St. Louis Post-Dispatch published an article discussing multiple studies “show[ing]

4
  The Corps defines “river stage” as “[a] measurement of the depth of water above an arbitrary
reference point in a stream channel.” See Glossary, “Stage”, RIVERGAGES.COM (last accessed
Nov. 12, 2019) http://rivergages.mvr.usace.army.mil/WaterControl/glossary2.cfm.
5
  The U.S. Geological Survey uses “gage” instead of “gauge” to describe river conditions. See
Why does the USGS use the spelling "gage" instead of "gauge"?, U.S. GEOLOGICAL SURVEY (last
accessed Nov. 5, 2019) https://www.usgs.gov/faqs/why-does-usgs-use-spelling-gage-instead-
gauge?qt-news science products=0#qt-news science products.
6
  Flood stage refers to “[t]he gage height of the lowest bank of the reach in which the gage is
situated. The term ‘lowest bank’ is, however, not to be taken to mean an unusually low place or
break in the natural bank through which the water inundates an unimportant and small area.”
Flood stage, Glossary, U.S. GEOLOGICAL SURVEY (last accessed Nov. 7, 2019)
https://water.usgs.gov/wsc/glossary.html#Floodstage.
                                               -6-
that similar volumes of water are resulting in higher flood levels over time,” while noting that the
Corps has rejected these studies as fundamentally flawed. (Def. Mot., Ex. 16, ECF 36-16.) Two
2008 articles, one in Time and one in Salon, linked increases in the severity and frequency of
flooding, and specifically the 1993 and 2008 floods, to the Corps’ river-training structures. (Def.
Mot., Exs. 17, 18, ECF 36-17, 36-18.) News coverage continued in 2010 with an editorial
published in the St. Louis Post-Dispatch, noting the decades of scientific research linking river
structures to worsened flooding and proposing that an independent review of chevron dikes
should occur before the Corps constructs any additional river-training structures in the MMR.
(Def. Mot., Ex. 20 at 2, 4, ECF 36-20.) In 2011, the Atlantic published an article detailing the
history of flooding on the Mississippi River. (Def. Mot., Ex. 15, ECF 36-15.) The article
connected the 1973 flood to human intervention in the form of river-training structures and
levees. (Id.)

        Also in 2011, the Southern Illinoisan published several articles linking river-training
structures to increased Mississippi River flooding. One article linked the magnitude of the 1993
flood to the Corps’ construction of river-training structures on the Mississippi. (Def. Mot., Ex.
19, ECF 36-19.) Another reported that local high school students were researching whether the
Corps’ river-training structures have any impact on flooding in the MMR. (Def. Mot., Exs. 25,
26, ECF 36-25, 36-26.)

        In addition to the news coverage, the U.S. Geological Survey issued Circular 1375, titled
“A Brief History and Summary of the Effects of River Engineering and Dams on the Mississippi
River System and Delta” in June 2012. (Pls.’ Resp., Ex. 1, ECF 37-1.) The Circular reviewed
previous studies and concluded that the “extensive system of levees and wing dikes” in the
Mississippi River protect against “intermediate magnitude floods” but have “reduced overall
channel capacity and increased flood stage by up to 4 meters for higher magnitude floods.” (Id.
at 1.) The Circular referenced a study from 1989, that found that sedimentation-induced loss of
storage had increased flood stages at older dams to near pre-dam levels, increasing the number of
flood days. (Id.) The Circular also referenced three different studies from 1975, 2001, and 2006,
that found that “wing dikes, in combination with levees, have reduced overall channel capacity
for intermediate and higher discharges, increasing [flood] stages over time.” (Id. at 1, 18, 36.)

                            b. Ohio River

       In addition to responding to flooding along the Mississippi River, beginning in about
1906, Congress and the Corps endeavored to improve the Ohio River’s navigability. In 1910,
Congress passed the Rivers and Harbors Act, authorizing the Corps to build a nine-foot
navigation channel on the Ohio River from Pittsburgh, Pennsylvania, where the river begins at
the confluence of the Allegheny and the Monongahela Rivers, to Cairo, Illinois, where the Ohio
meets the Mississippi. 7

        Neither party has offered evidence of river-training structures on the Ohio River. The
only river manipulation in this case appears to be the flood-control mechanisms on direct and
indirect Mississippi River tributaries. Specifically relevant here, the Corps built the Kentucky
Dam and Reservoir on the Tennessee River in 1945 and the Barkley Dam and Reservoir on the

7
    Rivers and Harbors Act of 1910, 61 Cong. Ch. 359, June 23, 1910, 36 Stat. 593.
                                                -7-
Cumberland River in 1966 to respond to the flooding threats in the Mississippi and Ohio Rivers
and their basins. 8 (See Def. Mot., Ex. 3 at Ex. A at VIII-1, II-4, II-1, ECF 36-3.) Together, the
Kentucky and Barkley Dams and Reservoirs have a flood capacity of nearly six million acre-feet.
(Id. at II-5, VIII-1.) The regulation of flows from the Reservoirs has resulted in “significant
lower Ohio flood reduction” and in lower stage readings on the Mississippi River at the Cairo,
Illinois river stage, and on the Ohio River at the Paducah, Kentucky river stage. (Def. Mot., Ex.
3 ¶¶ 3-6, ECF 36-3; id. at Ex. A at Appendix G, X-37-38.)

        In 1988 Congress authorized the Olmsted Locks and Dam Project to improve navigation
along the Ohio River. Water Resources Development Act of 1988, Pub. L. No. 100-676, 102
Stat. 4012. The locks were constructed offsite from 1992 to 2004. (Def. Mot., Ex. 4, ECF 36-4.)
During low-water seasons, the Corps set the dam sections in place, so as not to constrict and
redirect the Ohio River using cofferdams. (Def. Mot., Ex. 5, ECF 36-5.) The dam became fully
operational in 2018. (Def. Mot., Ex. 4, ECF 36-4.) The Corps lowers the dam’s wicket gates
during periods of high water flow to facilitate navigation in the Ohio River. (Def. Mot., Ex. 5,
ECF 36-5.)

               3.     The Plaintiffs’ Claims of Recent Flooding

        The plaintiffs allege that their land has been taken by flooding, and that the flooding is
not reflected in the government’s gage data showing that flooding is no worse than in prior years.
The plaintiffs also allege that the government’s gage data was “generic,” and only parcel-specific
data would suffice to counter their allegations. To bolster this argument, the plaintiffs submitted
three declarations, which they assert are “representative” of their case. (See, e.g., Oral Argument
Transcript (“Tr.”) at 60:20, 73:19.) All three declarants allege that their land has experienced
atypical, out-of-season flooding since either 2013 or 2015, although they did not provide
evidence to show that the government’s gage data was incorrect for their properties. (LaFont
Decl. ¶¶ 3-4; Boatwright Decl. ¶¶ 3-4; Davis Decl. ¶¶ 3-4 (Pls.’ Resp., Exs. 3-5, ECF 37-3, 37-4,
37-5).) At oral argument, the plaintiffs explained that atypical flooding is flooding that occurs
outside of historic winter and spring floods, especially during or close to the planting season.
(Tr. 57:1-20.) In the plaintiffs’ view, it is this atypical flooding that amounts to the taking.

        The Court closely reviewed the Amended Complaint in an attempt to find facts in the
record to substantiate the plaintiffs’ claims. The Court reviewed the address information that the
plaintiffs supplied, in order to determine the precise location of the plaintiffs’ properties. The
Court was unable to do so for nearly 70% of the plaintiffs. At least 10 plaintiffs did not provide
specific address information at all—only a county or a town listed as “property location” and no
mailing address. Without specific property location information, the Court could not take
judicial notice of “parcel-specific” flooding data, even to the extent that such data exists.

       Instead, the Court took judicial notice under Rule 201 of the Federal Rules of Evidence of
the Corps’ daily, monthly, and yearly data on flooding at several gages along the Mississippi and
Ohio Rivers. 9 The Court also took judicial notice of the National Weather Service’s seasonal

8
 Both the Tennessee River and the Cumberland River empty into the Ohio River.
9
 See, e.g., River Gages, U.S. ARMY CORPS OF ENG’RS (last accessed Nov. 4, 2010)
http://rivergages.mvr.usace.army.mil/WaterControl/yearly tables2.cfm?sid=03611000&from1=0
                                               -8-
rainfall data record at Paducah, Kentucky and Cape Girardeau, Missouri, the only points with
such records near the plaintiffs’ properties. 10

       With regard to the Ohio River, the gage data at Paducah, Kentucky shows flooding that
corresponded with record rainfall in spring 2008, spring 2011, winter 2018-19, spring 2019, and
summer 2019. 11 This flood data comports with the broader history of flooding at Paducah,
which has experienced flooding in 37 of the 51 years between 1967 and 2018. (Def. Mot., Ex.
13 at Ex. B, ECF 36-13.)

        Similarly, on the Mississippi River, the gage data at Cape Girardeau, Missouri shows
flooding that corresponded with record rainfall in winter 2007-2008, spring 2008, fall 2009,
spring 2011, summer 2015, winter 2018-2019, spring 2019, and summer 2019. Here again, the
flood data comports with the broader history of flooding at Cape Girardeau, which has
experienced flooding in 39 of the 51 years between 1967 and 2018—including several years
(1984, 1993, 2008, 2010 and 2011) when the river was flooded for more than 100 days. (Def.
Mot., Ex. 14 at Exs. A, H, ECF 36-14.)

               4.      Plaintiffs’ Theory of Causation

        The plaintiffs allege that the Corps’ river-training structures have caused increased
flooding and raised surface-water elevations. The plaintiffs allege further that the numerous
river-training structures have “altered natural hydrograph of the Middle Mississippi River by
contributing to higher [water-surface elevations] at lower discharges than in the past and to a
downward trend in annual minimum stages.” (Am. Compl. ¶ 203.)

        The plaintiffs do not attempt to pinpoint when the river structures in the Mississippi or
Ohio Rivers became sufficiently numerous or of a type to cause atypical flooding. Instead, they
allege that the impact of river-training structures on water levels has been cumulative. (Id. ¶
204.) They contend that the newer structures used by the Corps since the 1980s (in particular the
bendway weir) “contribute even more substantially to rising water surface elevations and
flooding than their predecessors.” (Pls.’ Resp. at 3, ECF 37.) The plaintiffs also contend that the


1/01/2007&to1=12/31/2019&dt=S&param=HG (river gage data, beginning in 2008 for Paducah,
KY on the Ohio River); River Gages, U.S. ARMY CORPS OF ENG’RS (last accessed Nov. 4, 2010)
http://rivergages.mvr.usace.army.mil/WaterControl/yearly_tables2.cfm?sid=CE401278&from1=
01/01/2007&to1=12/31/2019&dt=S&param=HG (river gage data, beginning in 2007 for Cape
Girardeau, MO on the Mississippi River).
10
   Climate Records – Paducah, KY – Seasonal Top 10 Lists, NAT’L WEATHER SERV. (last
accessed Nov. 5, 2019) https://www.weather.gov/pah/PaducahSeasonalRecords; Climate
Records – Cape Girardeau, MO – Seasonal Top 10 Lists, NAT’L WEATHER SERV. (last accessed
Nov. 5, 2019) https://www.weather.gov/pah/CapeGirardeauSeasonalRecords.
11
   The National Weather Service records define spring as March through May, summer as June
through August, fall as September through November, and winter as December through
February. See Climate Records – Paducah, KY – Seasonal Top 10 Lists, NAT’L WEATHER SERV.
(last accessed Nov. 5, 2019) https://www.weather.gov/pah/PaducahSeasonalRecords; Climate
Records – Cape Girardeau, MO – Seasonal Top 10 Lists, NAT’L WEATHER SERV. (last accessed
Nov. 5, 2019) https://www.weather.gov/pah/CapeGirardeauSeasonalRecords.
                                               -9-
mean local stage 12 of the river has been progressively increasing as a result of the Corps' addition
of new structures over time. (Id. at 4.)

        There has been public and academic discussion of the theory that river-training structures
are responsible for the severity of the flooding on the Mississippi River since at least the mid-
1970s, following the 1973 flood. (See Def. Mot. at 8 (citing Michael A. Stevens et al., Man-
Induced Changes of Middle Mississippi River, 101 J. OF THE WATERWAYS, HARBORS & COSTAL
ENG’G DIV. 119-33 (1975); C.B. Belt Jr., The 1973 Flood and Man’s Constriction of the
Mississippi River, 189 SCI. 681-84 (1975)).) The Corps, together with University of Missouri
researchers, “reviewed and rebutted” the theory about river-training structures. (Id. (citing
Glendon T. Stevens, Discussion of “Man-induced Changes of Middle Mississippi River,” 102 J.
OF THE WATERWAYS, HARBORS & COSTAL ENG’G DIV. Issue 2, 280 (1976); Gary R. Dyhouse,
Discussion of “Man-induced changes of Middle Mississippi River,” 102 J. OF THE WATERWAYS,
HARBORS & COASTAL ENG’G DIV. Issue 2, 277-79 (1976); Claude N. Strauser & Norbert C.
Long, Discussion of “Man-induced changes of Middle Mississippi River,” 102 J. OF THE
WATERWAYS, HARBORS & COSTAL ENG’G DIV. Issue 2, 281-82 (1976); Jerome A. Westphal &
Paul R. Munger, Discussion of “Man-induced changes of Middle Mississippi River,” 102 J. OF
THE WATERWAYS, HARBORS & COSTAL ENG’G DIV. Issue 2, 283-84).)

        The media in the plaintiffs’ local area have also covered the theory that river-training
structures have caused an increase in severe flooding. Dr. Nicholas Pinter, a professor at
Southern Illinois University (“SIU”), was quoted in a June 2008 Time article, opining that recent
floods in the MMR were caused by river-training structures whose use had significantly
increased water levels. (Def. Mot., Ex. 17, at 2-4, ECF 36-17.) The editorial board of “St. Louis
Today” in an August 2010 column recommended that before the Corps built any more structures,
an independent review should be conducted by the National Academy of Sciences in light of
“[t]wo decades of peer-reviewed scientific research” showing that river-training structures
“worsen flooding.” (Id. Ex. 20 at 3 ECF 36-20.) An August 2011 article in the St. Louis Post-
Dispatch describes the effort of three professors from SIU and Washington University in St.
Louis, starting in 2008, to expose “what they consider to be a major threat to the St. Louis-Metro
East Mississippi River corridor, which also includes communities farther down the river to
Cairo[, Illinois].” (Id., Ex. 19, ECF 36-19.) That threat was “the construction of river
structures,” that, they wrote, “exacerbate[d] flooding” and “contributed to the unprecedented
levels of the 1993 flood.” (Id.) That article quoted Dr. Pinter, who claimed that “[t]he problem
in particular for Southern Illinois is our stretch of the river is the most densely wing-diked of any
river in the world, that I've been able to find[.]” (Id. at 7.) He noted that “flood levels have
increased enormously . . . . At its worst spot, 17 feet higher for the same storm upstream than a
flood would have been in the mid-19th century.” (Id. at 7.)

        In 2014, environmental groups brought a lawsuit challenging several Corps
environmental assessments that had concluded that river-training structures did not significantly
affect water-surface elevations in the MMR. See generally Nat’l Wildlife Fed’n v. U.S. Army
Corps of Eng’rs, No. 14-590-DRH-DGW, 2014 WL 6685235 (S.D. Ill. Nov. 25, 2014).

12
   Mean local stage refers to the average “measurement of the depth of water above an arbitrary
reference point in a stream channel” for a specific location. See Glossary, “Stage”
http://rivergages.mvr.usace.army.mil/WaterControl/glossary2.cfm (last accessed Oct. 23, 2019).
                                               - 10 -
Following the court’s denial of the plaintiffs’ motion for a preliminary injunction to stop the
Corps from placing new river-training structures in the Middle Mississippi River, the plaintiffs
voluntarily dismissed their suit. Nat’l Wildlife Fed’n, 2014 WL 6685235, at *12.

       C.      Procedural Background

        On July 26, 2018, the plaintiffs filed this inverse condemnation action against the United
States. (Compl. ¶ 1, ECF 1.) The United States moved to dismiss the complaint, arguing that the
plaintiffs’ claims were time-barred under RCFC 12 (b)(1) because the plaintiffs had alleged a
taking for the previous ten years, and failed to state a claim under RCFC 12(b)(6). (Def. Mot.,
ECF 9.). The plaintiffs then amended their complaint on December 17, 2018, to remove
references to flooding over the previous ten years. (Am. Compl., ECF 10.) The government
renewed its motion to dismiss (ECF 17). After the plaintiffs identified clerical errors in mean-
stage data in declarations supporting the government’s renewed motion, the Court permitted the
government to refile its renewed motion to dismiss (ECF 28). The case was transferred to this
judge in June 2019 (ECF 34). The government corrected the errors in its motion to dismiss in a
renewed motion (ECF 36), to which the plaintiffs responded (ECF 37). The motion to dismiss is
fully briefed, and the Court heard oral argument on October 22, 2019, in Paducah, Kentucky.

II.    JURISDICTION AND STANDARD OF REVIEW

         The Tucker Act, 28 U.S.C. § 1491, provides this Court with jurisdiction to hear suits for
compensation under the fifth amendment’s Takings Clause. Boling v. United States, 220 F.3d
1365, 1370 (Fed. Cir. 2000). Such suits must be brought within six years of the claim’s accrual
for this Court to have jurisdiction. 28 U.S.C. § 2501; John R. Sand & Gravel Co. v. United
States, 457 F.3d 1345, 1354 (Fed. Cir. 2006).

        The government has moved to dismiss the Amended Complaint for lack of subject-matter
jurisdiction under RCFC 12(b)(1). In such cases, to determine whether subject-matter
jurisdiction exists, the Court accepts “as true all undisputed facts asserted in the plaintiff's
complaint and draw[s] all reasonable inferences in favor of the plaintiff.” Trusted Integration,
Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). When a plaintiff’s jurisdictional
facts are challenged, however, only those factual allegations that the government does not
controvert are accepted as true. Shoshone Indian Tribe of Wind River Reservation, Wyo. v.
United States, 672 F.3d 1021, 1030 (Fed. Cir. 2012). In evaluating such a challenge, the court is
not “restricted to the face of the pleadings” in resolving disputed jurisdictional facts. The court
may review evidence outside the pleadings. Id. If the court finds that it lacks subject-matter
jurisdiction over a claim, RCFC 12(h)(3) requires the court to dismiss that claim.

         Takings claims accrue “‘only when all the events which fix the government’s alleged
liability have occurred and the plaintiff was or should have been aware of their existence.’”
Casitas Mun. Water Dist. v. United States, 708 F.3d 1340, 1359 (Fed. Cir. 2013) (emphasis
original) (quoting Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed.
Cir. 1988)). “The act that causes the accrual of a physical taking claim is the act that constitutes
the taking.” Id. (citing Ingrum v. United States, 560 F.3d 1311, 1314 (Fed. Cir. 2009)). Thus,
when a permanent taking is alleged, “the key date for accrual purposes is the date on which the


                                               - 11 -
plaintiff's land has been clearly and permanently taken.” Boling, 220 F.3d at 1370 (citing
Seldovia Native Assoc., Inc. v. United States, 144 F.3d 769, 774 (Fed. Cir. 1998)).

        The government has also moved to dismiss for failure to state a claim under RCFC
12(b)(6). In evaluating a motion to dismiss for failure to state a claim, the court must accept as
true a complaint’s well-pleaded factual allegations and construe them in the most favorable
manner to the plaintiff. Ashcroft v. Iqbal, 566 U.S. 662, 668 (2009). The court must draw all
reasonable inferences in favor of the non-moving party. Sommers Oil Co. v. United States, 241
F.3d 1375, 1378 (Fed Cir. 2001).

        To avoid dismissal, a complaint must allege facts “plausibly suggesting (not merely
consistent with)” a showing that the plaintiff is entitled to the relief sought. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 558 (2007). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).

III.   DISCUSSION

       A.      Subject-Matter Jurisdiction

        The government’s Motion to Dismiss under RCFC 12(b)(1) turns on whether the
plaintiffs knew or should have known that their land was taken by flooding allegedly caused by
the defendant before July 2012. The government argues that the plaintiffs knew or should have
known before July 26, 2012 (six years before they filed suit) that: 1) the Corps had already built
hundreds of river-training structures in the Mississippi River, which do not affect the Ohio River
upstream, and the Corps had already built dams on the Ohio River; 2) the areas surrounding the
Mississippi and Ohio Rivers have long been subject to flooding of the same or a similar
magnitude and duration; and 3) the plaintiffs knew or should have known about their theory that
the river-training structures and Olmsted Dam were responsible for the increase in water-surface
elevations.

        The plaintiffs allege that their property was permanently taken through recurrent and
atypical flooding that was a direct and foreseeable result of the government’s action—the Corps’
construction of river-training structures and the Olmsted Dam. The plaintiffs allege that their
cause of action for a permanent taking accrued “no sooner than 2015,” because that was the first
year that it was apparent that the cumulative impact of the Corps’ river-training structures and
dams had caused the plaintiffs’ land to be permanently taken, rather than only occasionally
inundated, by flooding.

        The plaintiffs also argue that their case is preserved under the stabilization doctrine
because the Corps has continued to build additional river-training structures in the Mississippi
River, and their cumulative impacts have increased water-surface elevations and worsened
flooding in the Mississippi and Ohio Rivers, and the construction of the Olmsted Dam on the
Ohio River have increased water-surface elevations and worsened flooding there. 13 The

13
  The plaintiffs’ argument as to the Olmsted Dam was not clear until oral argument. (See Tr. at
68:11-22.) On its face, the plaintiffs’ Amended Complaint does not adequately raise the claim,
                                               - 12 -
plaintiffs argue that the effects of these river-training structures and the Olmsted Dam did not
stabilize and accrue until 2015, so it could not have been clear that “the land had become
appropriated for public use” until at least that time, United States v. Dow, 357 U.S. 17, 27
(1958), and therefore their claims are timely.

        Both parties set forth evidence of the history of flooding, and the plaintiffs’ offered
declarations from three plaintiffs alleging that the nature of flooding changed in 2015. None of
the evidence before the Court, however, refers to the plaintiffs’ individual properties. The
plaintiffs argue that the government was required to put forth parcel-specific evidence
controverting the plaintiffs’ allegations of flooding, but the government could scarcely do so
when the locations of most of the plaintiffs’ properties were not specifically identified in the
Complaint or Amended Complaint. While the plaintiffs’ allegation that their properties
experienced atypical flooding starting in 2015 was not controverted, the Court acknowledges that
the government could not controvert that specific allegation without more information about the
location of the plaintiffs’ properties. It is unfair to disadvantage the plaintiffs by dismissing their
claims due to the opaque Amended Complaint. The Court finds that additional facts from the
plaintiffs and further development of the record will assist in resolving the question of the
timeliness of the claims.

        The determination of whether the plaintiffs’ claims have already accrued or stabilized is a
fact-intensive one. The Court will not resolve these issues on the current record, when it lacks
parcel-specific information from both parties. Considering this record, the Court elects to
exercise its discretion under RCFC 12(i) to defer consideration of the government’s motion to
dismiss for lack of subject-matter jurisdiction until trial, when it can make more “detailed
findings of fact.” 14 Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23, 29 (2012).

         The government points to the allegation in the plaintiffs’ original Complaint that the
plaintiffs had endured flooding for nine to 10 of the previous 10 years as evidence that the
plaintiffs have acknowledged that their claims come too late under the six-year statute of
limitations. The plaintiffs’ own allegations, since eliminated but not otherwise withdrawn, put
the plaintiffs in a difficult posture, but the Court is not prepared at this early stage of the case to
reject the entire case and the claims of all the plaintiffs due to this early admission.

         Finally, this case is very different from Jackson-Greenly Farm, Inc. v. United States, 144
Fed. Cl. 610 (2019). In that case, the plaintiffs challenged the Corps’ decision not to rebuild a
single failed levy, which they alleged resulted in a taking by flooding, id. at 618, whereas the
plaintiffs here challenge multiple Corps actions over decades in a broader area that encompasses
at least two rivers. The Amended Complaint here suffers from many of the same defects noted
in Jackson-Greenly Farm, but because it presents more complexity with a greater variety of facts
and variables, the Court finds it better to allow for further development of the record.


but the Court will consider the claim for purposes of the statute of limitations as if it had been
properly alleged.
14
   RCFC 12(i) provides, in pertinent part, that “any defense listed in RCFC 12(b)(1)-(7)—
whether made in a pleading or by motion— . . . must be heard and decided before trial unless the
court orders a deferral until trial.” RCFC 12(i) (emphasis added).
                                                 - 13 -
        B.      Claim Sufficiency

        The government argues that the plaintiffs fail to state a claim because they do not identify
the “precise action” that gives rise to a taking and allege a tort instead of a taking. (Def. Mot. at
28, 30, ECF 36.) The Court disagrees.

        To prevail in a takings claim, a plaintiff must show (1) “a valid property interest at the
time of the taking[,]” such as an ownership or leasehold interest, Wyatt v. United States, 271 F.3d
1090, 1096 (Fed. Cir. 2001), and (2) a government “physical invasion or appropriation of private
property” that amounted to a compensable taking. See, e.g., Huntleigh USA Corp., 525 F.3d at
1378-79. When plaintiffs have alleged a “nonfrivolous takings claim founded upon the Fifth
Amendment, jurisdiction under the Tucker Act is proper.” Moden v. United States, 404 F.3d
1335, 1341 (Fed. Cir. 2005). The remaining question, then, is whether plaintiffs’ complaint
“contain[s] sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

        The plaintiffs here met the standard for notice pleading to survive a motion to dismiss.
The plaintiffs have alleged that they have property interests in land. They also allege that the
cumulative effect of the government’s river-training structures and dams caused flooding to their
properties, which constituted a physical invasion of private property. If these allegations are
true, the plaintiffs state a claim upon which relief could be granted. To the extent that the
government disagrees with the plaintiffs’ allegations, the dispute presents a merits issue thar the
government can elucidate in a motion for summary judgment when both parties have provided
greater clarity and specificity with respect to each plaintiff. 15

        The government’s motion to dismiss for failure to state a claim is denied.




15
  The Court notes that at least some of the plaintiffs are unlikely to prevail. For example, one
plaintiff apparently owns property near the Tennessee River, about which no allegations have
been made. In addition, as noted above at note 13, the plaintiffs’ claims regarding the Olmsted
Dam are not well-pleaded, putting at risk the claims of the plaintiffs regarding flooding from the
Ohio River. The claims of the plaintiffs along the Mississippi River are at risk in light of the
plaintiffs’ concession at oral argument that the river-training structures in the MMR would have
impacts upstream, but not downstream. (Tr. 68:16-22, 70:17-22.) All of these issues are best
resolved after further, parcel-specific factual development. The Court will address these specific
plaintiffs either on a summary judgment motion or when greater fact-development allows a
decision on the government’s motion to dismiss under the statute of limitations.
                                                 - 14 -
IV.    CONCLUSION

       For the reasons stated, resolution of the government’s motion to dismiss under RCFC
12(b)(1) is DEFERRED until trial pursuant to RCFC 12(i), and the government’s motion to
dismiss under 12(b)(6) is DENIED. The Court will schedule a status conference to discuss a
schedule for the case moving forward.

       It is so ORDERED.

                                                            s/ Richard A. Hertling
                                                            Richard A. Hertling
                                                            Judge




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