          In the United States Court of Federal Claims
                               Nos. 14-304 L and 14-1120 L
                                (Filed: February 8, 2016)


                                           )
 TROY ALFORD ET AL., and                   )
 JAMES M. CHANEY, JR                       )
                                           )
                      Plaintiffs,          )
                                           )      Subject Matter Jurisdiction, State law
 v.                                        )      claims
                                           )
 THE UNITED STATES,                        )
                                           )
                      Defendant.           )


B. Blake Teller, Teller, Hassell & Hopson, LLP, Vicksburg, Mississippi, attorney for
plaintiffs.

William J. Shapiro and Carter F. Thurman, United States Department of Justice,
Environmental & Natural Resources Division, Natural Resources Section, Washington,
DC, for defendant.

                                    OPINION AND ORDER

SMITH, Senior Judge

       This consolidated action is before the court on defendant’s partial motion to
dismiss. Plaintiffs primarily claim that the United States Army Corps of Engineers
(“Corps”) effected a Fifth Amendment taking of their property by diverting flood waters
from the Mississippi River onto their property, which is located in Warrant County,
Mississippi. But in addition to seeking relief under the Fifth Amendment, plaintiffs also
argue that this action by the Corps violated the takings clause of the Mississippi
Constitution and constituted a nuisance or trespass under Mississippi common law.
       On October 26, 2015, defendant filed a motion to dismiss plaintiffs’ state law
claims for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Rules of
the U.S. Court of Federal Claims (“RCFC”). For the following reason, the court grants
defendant’s partial motion to dismiss.
I.     Background

       A.     The Corps Diverted Flood Water onto Plaintiffs’ Property

       The plaintiffs in Alford, et al. (“plaintiffs”) are all Mississippi residents, who own
real and personal property in the Eagle Lake Community, which is located in Warrant
County, Mississippi, in the Lower Mississippi River Valley. Sec. Am. Compl. ¶¶ 10 –
48, ECF No. 35 (“Compl.”). This valley “is a relatively flat plain of about 35,000 square
miles bordering the river, which would be inundated during times of high water if not for
man-made protective works.” Compl. ¶ 52. Following the disastrous Mississippi River
Flood of 1927, the Federal Government passed the Flood Control Act of 1928,
authorizing the creation of the Mississippi River and Tributaries Project, which is a
system of levees and floodways designed to contain flood flows and redirect excess flows
away from critical areas of the lower Mississippi. Compl. ¶¶ 53 – 55.
       Plaintiffs’ property is located near Eagle Lake, which, until 1866, was an oxbow
bend on the lower Mississippi River, known as Eagle Bend. Silting on both sides of the
water channel cut off the bend from the Mississippi, creating an oxbow lake. The U.S.
Army Corps of Engineers (“Corps”) further separated Eagle Lake from the Mississippi
River by completing the Mainline Mississippi River Levee in 1925 and the Steel Bayou
Drainage Structure in 1968. Compl. ¶ 57. These structures changed the source of
backwater to Eagle Lake from the Mississippi and Yazoo Rivers to the Steel Bayou and
Sunflower Rivers. Id. In 1977, the Corps constructed the Muddy Bayou Control
Structure, which “controls the waters entering and leaving Eagle Lake.” Compl. ¶ 59.
The Mississippi Department of Wildlife, Fisheries, and Parks and the Corps have joint
operational control of the Muddy Bayou Control Structure, pursuant to the Eagle Lake
Water Level Management Agreement (“Eagle Lake Agreement”), which was executed on
December 6, 2000. Compl. ¶ 60.
        In March and April 2011, several large storm systems caused the Mississippi
River to “swell[] to record stages.” Compl. ¶ 65. Plaintiffs describe the resulting flood
as “among the largest and most damaging high water events in the history of the United
States . . . comparable in extent to the Great Mississippi Flood of 1927.” Compl. ¶ 65.
Pressure from the flood waters threatened to breach the Mississippi River Mainline
levee—which, according to the Corps, would have endangered “[a]pproximate[l]y] 4,000
structures (3,000 homes [and] 1,000 other structures) and 925,000 acres.” Compl. ¶ 68.
       To avert this potentially catastrophic flooding, the Corps approved an emergency
proposal to “reduce[] pressures on the Mississippi River levee near Buck Chute” by
“opening the Muddy Bayou Structure to allow water to enter Eagle Lake.” Corps Mem.,
Pl.’s Ex. A, at 1-2, ECF No. 34. The Corps described this action as a “major deviation
from the approved Water Control Plan,” which would raise the level of water in Eagle

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Lake “above the level authorized by the water control plan [set forth in the Eagle Lake
Agreement].” Id. The Corps acknowledged that the deviation would cause some damage
to the Eagle Creek community, including “the inundation of the fishing piers located in
the lake . . . .” Id. The Corps approved this deviation on April 28, 2011. Id.
       Plaintiffs allege that the inundation of Eagle Creek resulting from this deviation
caused “substantial damage to [or] devaluation of [p]laintiffs’ homes, businesses,
buildings, structures, equipment, docks, piers, retaining walls, fishery waters, and other
real and personal property located in the Eagle Lake Community.” Compl. ¶ 80.
       B.     Procedural History

       The plaintiffs in Alford et al. originally filed suit on April 4, 2014, arguing that the
Corps effected a Fifth Amendment taking by intentionally diverting flood waters from the
Mississippi River onto Eagle Lake. See Original Compl., Alford et al., No. 14-304, ECF
No. 1. Plaintiff Chaney, likewise, filed a complaint alleging a Fifth Amendment taking,
on November 18, 2014. See Original Compl, Chaney, No. 14-1120 L, ECF No. 1. On
March 23, 2015, the court consolidated Alford et al. v. United States with Chaney v.
United States. See Order, Alford et al., ECF No. 20. On August 14, 2015, the court set a
deadline of May 13, 2016 for the close of all discovery. See Order, Alford et al., ECF
No. 29.
        On September 17, 2015, the plaintiffs in Alford et al. and Chaney each filed
amended complaints, adding three new claims (Counts II, III, and IV) in addition to the
original takings claim (now Count I). See Alford et al., ECF No. 34 – 35. In Count II,
plaintiffs argue that the Corps violated the takings provision of the Mississippi
Constitution of 1890, found in Article 3 Section 17. Compl. ¶¶ 82 – 83 (ECF No. 35). In
Count III, plaintiffs argue that the Corps’ action violated real property rights protected by
state law. Compl. ¶¶ 84 – 85. Finally, in Count IV, plaintiffs allege that the Corps’
action violated their rights as third party beneficiaries of the Eagle Lake Agreement by
impermissibly allowing the water level in Eagle Creek to exceed the maximum level set
under the terms of the Eagle Creek Agreement. Compl. ¶¶ 86 – 91.
        On October 26, 2015, defendant moved to dismiss Counts II and III for lack of
jurisdiction, pursuant to RCFC 12(b)(1). Def’s Mot. Dismiss, ECF No. 37. Defendant’s
motion is now ripe for review.
II.    Discussion

        Like all federal courts, the Court of Federal Claims is “a court of limited
jurisdiction.” Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997). Of course,
jurisdiction is a term that means “limitation.” No court has infinite power. All jurisdiction
is limited. Jurisdiction is a threshold matter that must be considered before the court can

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proceed to the merits. PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1364 (Fed. Cir.
2007) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998)). When
the court’s subject matter jurisdiction to hear a case is challenged, the plaintiff has the
burden of establishing by a preponderance of the evidence that this court has jurisdiction
over its claims. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). The court “must accept as true all undisputed facts asserted in the plaintiff’s
complaint and draw all reasonable inferences in favor of the plaintiff.” Trusted
Integration, Inc. v. United States, 659 F.3d 1159, 1163 (2011) (citing Henke v. United
States, 60 F.3d 795, 797 (Fed. Cir. 1995)).
        This court’s jurisdictional grant is found primarily in the Tucker Act, which
provides the Court of Federal Claims the power “to render any judgment upon any claim
against the United States founded either upon the Constitution, or any Act of Congress or
any regulation of an executive department, or upon any express or implied contract with
the United States . . . in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). Although
the Tucker Act explicitly waives the sovereign immunity of the United States against
such claims, it “does not create any substantive right enforceable against the United
States for money damages.” United States v. Testan, 424 U.S. 392, 398 (1976). Rather,
in order to fall within the scope of the Tucker Act, “a plaintiff must identify a separate
source of substantive law that creates the right to money damages.” Fisher v. United
States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part).
       In its partial motion to dismiss, defendant argues that the court lacks jurisdiction
over Counts II and III because these claims allege violations of state law. Specifically, in
Count II, plaintiffs allege that even if the court determines that the flooding on
“Plaintiffs’ property is not deemed to be a ‘taking’” under the Fifth Amendment of the
U.S. Constitution, Section 17 of the Mississippi Constitution of 1890 entitles plaintiffs to
“compensation for all damages incurred as a result of the public use made of [p]laintiffs’
property.” Compl. ¶ 83. In Count III, plaintiffs argue that “the wrongful, intentional
actions of the Defendant which resulted in the flooding of Plaintiffs’ property constitute a
trespass and/or nuisance under the laws of the state of Mississippi and further violate the
natural water flowage rights protected by the real property laws of the state of
Mississippi.” Compl. ¶ 85.
       The court lacks jurisdiction over these two claims. The plain language of the
Tucker Act only confers jurisdiction over claims “founded either upon the Constitution,
or any Act of Congress or any regulation of an executive department, or upon any express
or implied contract with the United States.” 28 U.S.C. § 1491(a)(1); see also Slone v.
United States, No. 14-408C, 2014 WL 2535078, at *2 (Fed. Cl. June 4, 2014) (“the
Tucker Act only provides for jurisdiction for claims arising under the United States
Constitution, not state constitutions”); Souders v. S.C. Pub. Serv. Auth., 497 F.3d 1303,

                                             4
1307 (Fed. Cir. 2007) (noting that “claims founded on state law are also outside the scope
of the limited jurisdiction of the Court of Federal Claims”).
        Additionally, the court lacks jurisdiction over plaintiffs’ trespass/nuisance claim
because it sounds in tort. See, e.g., Cycenas v. United States, 120 Fed. Cl. 485, 498
(2015) (explaining that trespass claims sound in tort); CanPro Investments Ltd. v. United
States, 120 Fed. Cl. 17, 25 (2015) (stating that “[n]uisance is a tort . . . and this court
plainly lacks jurisdiction over tort claims). As explained above, the Tucker Act
specifically limits this court’s jurisdiction to “claim[s] against the United States . . . in
cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (emphasis added).
        Plaintiffs, in response, argue that “even though a claim may sound in tort, if the
primary thrust of the complaint is breach of contract, the Claims Court may retain
jurisdiction.” Pl.’s Resp. at 3. In support of this proposition, plaintiffs rely primarily on
McAbee Construction, Inc. v. United States, 22 F.3d 1106, No. 93-1383, 1994 WL
108057 (Fed. Cir. Mar. 29, 1994) (unpublished opinion). The plaintiff in McAbee filed
suit in federal district court, for $922,500.00 in damages under the Federal Tort Claims
Act. The plaintiff in that case alleged that defendant had damaged its land by negligently
or wrongfully depositing over 200,000 cubic yards of excess fill material on plaintiff’s
land, rendering the property unusable. Although plaintiff had granted the government an
easement to deposit fill material onto the land in question, plaintiff alleged that the Corps
deposited material “in excess of its authority” under the contract. Id. a *3. The Federal
Circuit held that notwithstanding plaintiff’s decision to style the complaint as a torts
claim, the substance of the allegations clearly indicated that “the alleged conduct of
defendant, if true, must be considered a breach of contract and not tortious conduct.”
McAbee Const., Inc. v. United States, 22 F.3d 1106 (Fed. Cir. 1994) at *2. Since plaintiff
was seeking over $10,000 in damages, the Federal Circuit concluded that the CFC had
exclusive jurisdiction over the matter. Id. (citing 28 U.S.C. § 1346(a)(2) and 28 U.S.C. §
1491(a)(1)).
        Plaintiffs misconstrue the legal conclusion of McAbee. That case simply stands
for the proposition that a plaintiff cannot skirt the jurisdictional limitations of 28 U.S.C. §
1346(a)(2) by artfully construing a contract claim as a tort claim. In other words, the
court will focus on the substance of a claim over the form if the two are inconsistent.
Plaintiffs’ contention that this court has jurisdiction over a claim sounding in tort as long
as “the primary thrust of the complaint is breach of contract” is not relevant here. This is
a tort claim and not a contract claim.
       Finally, plaintiffs argue that “[t]he claims that the Government are attempting to
dismiss serve to show the underlying property interest that is protected by the
Constitution and serve as the basis for monetary damages afforded to the Plaintiff by the
Federal Claims Court.” Pl.’s Resp. at 4. The court agrees that it may consider state law
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for the purpose of determining whether plaintiffs have a cognizable property interest for
purposes of a Fifth Amendment takings claim, but, in the amended complaint, plaintiffs
did not present Counts II and III for this limited purpose. Plaintiffs presented these claims
as alternative theories of relief. As explained above, 28 U.S.C. § 1491(a)(1) expressly
limits this court’s jurisdiction to claims “not sounding in tort.” Accordingly, the court
lacks jurisdiction to hear Counts II and III.
III.   Conclusion

       For the reasons set forth above, defendant’s partial MOTION to dismiss Counts II
and III is GRANTED. On or before Wednesday, February 17, 2016, the parties
shall file a joint status report indicating how this case should proceed, with a
proposed schedule, as appropriate.

       IT IS SO ORDERED.



                                                 s/ Loren A. Smith
                                                 LOREN A. SMITH
                                                 Senior Judge




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