            In the United States Court of Federal Claims
                                           No. 14-183L
                                     (Filed: March 11, 2019)


                                              )
    IDEKER FARMS, INC., et al.,               )
                                              )     Motion for Reconsideration; Fifth
                       Plaintiffs,            )     Amendment Taking; Missouri River;
                                              )     Flooding; Liability; Causation.
    v.                                        )
                                              )
    THE UNITED STATES,                        )
                                              )
                       Defendant.             )
                                              )
 

R. Dan Boulware, St. Joseph, MO, for plaintiffs. Edwin H. Smith, Seth C. Wright, and, R.
Todd Ehlert, St. Joseph, MO, and Benjamin D. Brown and Laura Alexander, Washington,
D.C., of counsel.
Terry M. Petrie, Environment and Natural Resources Division, U.S. Department of
Justice, Washington, D.C., with whom was Jeffrey H. Wood, Acting Assistant Attorney
General, for defendant. Jacqueline C. Brown, Laura W. Duncan, Carter F. Thurman,
and Daniela A. Arregui, Washington, D.C., of counsel.

                 OPINION ON MOTION FOR RECONSIDERATION

FIRESTONE, Senior Judge

         This Fifth Amendment takings action was brought by farmers, landowners, and

business owners from six states claiming that changes the United States Corps of

Engineers (the “Corps”) has made to its operations on the Missouri River (“River”) after

2004 have resulted in the taking of flowage easements on their properties without just

compensation in contravention of the Fifth Amendment to the United States Constitution.
The plaintiffs claim that the Corps has made changes to the Missouri River (“River

Changes”) in order to implement the Missouri River Recovery Program (“MRRP”) and

changes to the operation of the dams and reservoirs that make up the Missouri River

Mainstem Reservoir System (“System Changes”) in order to comply with, among other

things, the Corps’ obligations to protect fish and wildlife species and their habitat. The

plaintiffs claim that these River and System Changes together have caused new and

increased flooding on their properties and filed the pending action to obtain just

compensation for this new and increased flooding.

       The court divided the litigation into two phases. In Phase I, a group of 44

representative plaintiffs with properties at various locations along the River from North

Dakota to Missouri were selected and were given the burden of proving whether the

Corps caused additional flooding or made flooding on their properties more severe for

each of the years at issue than would have existed if the Corps had not implemented the

River and System Changes after 2004. In Phase I, the representative plaintiffs also had to

address whether the flooding for the years at issue at each of the representative plaintiffs’

properties was a foreseeable result of the Corps’ River and System Changes.

       The court’s factual findings and legal conclusions are described in detail in the

court’s 103—page opinion. Ideker Farms, Inc. v. United States, 136 Fed. Cl. 654 (2018).

As discussed in the opinion, the Corps’ River Changes under the MRRP involve the

Corps’ actions to avoid jeopardizing three federally listed species under the Endangered

Species Act (“ESA”), 16 U.S.C. § 1531 et seq.: the piping plover, the interior least tern,

and the pallid sturgeon. Id. at 666-670. The MRRP includes implementation of the Bank

                                              2 
Stabilization and Navigation Fish and Wildlife Mitigation Project (“Project”) which the

court labeled River Changes. Id. at 665. Under this Project, the Corps has constructed

various mitigation projects along the River and has removed and modified various

structures previously built by the Corps, for navigation and flood control, in order to

create species habitat.1

              The System Changes at issue in this litigation were also implemented by the Corps

to address the Corps’ obligations to avoid jeopardizing the above-identified threatened

and endangered species. To meets its environmental obligations, the Corps made certain

releases to benefit species at various times throughout the year to either encourage or

discourage nesting or spawning. Id. at 669. As part of this effort, the Corps at times

maintained a greater amount of water in the System reservoirs for the benefit of fish and

wildlife than it had before 2004. Id. at 668-69. In this connection, the Corps’ post-2004

Master Manuals (“new Master Manual”), which govern the Corps’ System operations,

clarified that flood control was no longer considered the Corps’ highest System priority

                                                            
1
  In its opinion the court, as a short-hand, referred to the Corps’ actions to implement the MRRP
as actions to meet the Corps’ obligations to comply with the Endangered Species Act by
returning the River to a more natural habitat. Ideker Farms, Inc., 136 Fed. Cl. at 665 (The MRRP
“is the Corps’ umbrella program for returning the Missouri River to a more natural state to aid in
the recovery of the Missouri River Basin ecosystem”) As discussed infra, the plaintiffs argue that
the court was clearly erroneous in finding that flooding in 2011 was not connected to the Corps’
actions to comply with the ESA. The plaintiffs contend that the 2011 flooding was caused by the
Corps having to change priorities to meet its obligations under the MRRP. Specifically, the
plaintiffs argued that “[e]very one of the years of flooding that we claim has the very same
theory . . . of combined and cumulative effects . . . of the MRRP designed to work in
combination to achieve the MRRP purpose.” Oral Arg. Trans. 11:25-12:8. The court determined
based on the evidence at trial that the plaintiffs were not able to prove that the flooding in 2011
was “caused” by the Corps’ System or River Changes to implement the MRRP. Those findings
and conclusions were all supported by relevant and reliable evidence presented to the court and
as discussed infra were not clearly erroneous.     
                                                               3 
but rather was one of the System’s several priorities to be balanced, until flooding

concerns become “imminent” and then flood control would be the highest priority. Id. at

691.

       The plaintiffs produced evidence to show more flooding had occurred on their

properties at various times in 2007, 2008, 2010, 2011, 2013, and 2014, than had occurred

before the System and River Changes were made. They presented expert testimony and

government witness testimony to show the Corps made releases from the System during

periods of high River flows to benefit species which contributed to even higher River

levels, and the higher River levels led to greater flooding than would have otherwise

occurred during high water events. Additionally, the plaintiffs produced expert and other

testimony to show that the changes made to the River under the MRRP, which as noted is

aimed at returning the Missouri River to a more natural state, also contributed to raised

water levels in the River and caused greater flooding. Id. at 695-96.

       The government presented evidence to counter the plaintiffs’ causation evidence

for each of the years in question. Id. at 709-711. The government’s experts opined based

on their studies that the Corps’ River and System Changes did not cause higher water

levels on the River and did not cause any new or increased flooding from what would

have been expected had the Corps not made the System and River Changes. Id. at 706-12.

       The experts for both the plaintiffs and the government offered their opinions based

on a comparison of flooding that occurred after 2004 with the Corps’ System and River

Changes as compared to the flooding that would have taken place without those System

and River Changes. All of the experts assumed for purposes of their analyses that the “but

                                             4 
for” world for comparison purposes included the System flood control protections built

and operated by the Corps under its pre-2004 Master Manuals together with all of the

River flood control protections in place prior to 2004.

       On March 13, 2018, after 55 days of trial, this court issued its opinion with

findings of fact and conclusions of law regarding causation and foreseeability of the

flooding on each of the 44 representative plaintiffs’ properties. The court found that

many of the representative plaintiffs had established causation and foreseeability in

connection with flooding that had occurred on their properties for 2007, 2008, 2010, 2013

and 2014. See id. at 762-63. The court concluded, however, that none of the plaintiffs had

established causation for the flooding that inundated their properties in 2011. Id. at 690-

94, 723.

       Regarding flooding in 2011, the court found that the cause of the flooding in 2011

was the release of unprecedented volumes of water from Missouri River System dams

occasioned by the unprecedented amount of snowmelt and rain that had flowed into the

Missouri River Mainstem Reservoir System during the spring of 2011. Id. at 690. The

court concluded as a matter of fact that the 2011 flooding and the levee failures that

caused even greater flooding during that year were not caused by the Corps’ change in

operations under the new Master Manual. Id. at 693. The court rejected the plaintiffs’

contention that a comparison of what would have happened had the Corps followed its

1979 Master Manual instead of the new Master Manual proved that the 2011 flooding

would not have been as severe had the Corps not implemented the changes in the new

Master Manual. Id. at 691-93. The court found that the plaintiffs’ expert analysis was

                                             5 
based on unsupported assumptions regarding the differences between the inflows into the

System reservoirs in 2011 and in 1997, the years plaintiffs’ expert used to support his

analysis of the differences between the 1979 Master Manual and new Master Manual. Id.

Specifically, the court explained that it rejected the comparison of 1997 to 2011 for

causation purposes because 2011 was colder and as a result the inflows to the reservoirs

in 2011 were lower in March and April than in 1997 and the total volume of runoff in

2011 was 20 percent higher than in 1997 and thus the two years could not be fairly

equated. Id.

       The evidence presented by the government established that the unprecedented and

unforeseeable inflows into the reservoirs in 2011 exceeded the capacity of the System by

a significant amount. Id. The evidence demonstrated that the System was designed to

control inflows of up to 40 million acre-feet and in 2011 the inflows exceeded 60.8

million-acre feet. Id at 690. The court rejected the plaintiffs’ expert testimony that the

Corps would have released water from the reservoirs earlier but for the MRRP and

accepted the government’s contention that the Corps had no reason to start releasing

water earlier from the reservoirs in order to accommodate the record-setting inflows that

happened later in the season. Id. at 693. For this reason, the court determined, that the

plaintiffs were in effect arguing that it was the Corps’ failure to act and properly manage

the 2011 flood which led to flooding of their property in 2011. The court explained that

challenges to the Corps’ failure to act or properly manage the 2011 flood sound in tort,

regardless of how plaintiffs characterized their claims, and this court does not have

jurisdiction over tort claims. Id. at 693.

                                              6 
       Regarding the taking claims for 2007, 2008, 2010, 2013, and 2014, after

considering the parties’ expert testimony and other lay and government witnesses, the

court concluded that some of the plaintiffs had met their burden of proving causation.

The court again based its causation conclusions on the comparisons made by the experts

of the flooding that would have occurred for each year in the aforementioned “but for”

world without the System and River Changes and the actual world with those changes.

Both parties’ experts, as noted above, assumed that the flood control protections that had

been part of the Corps’ Missouri River program before 2004 were in place when making

their comparisons between the “but for” and actual world.

       Both the plaintiffs and government have moved for reconsideration of the court’s

Phase I decision. The plaintiffs argue in their motion that the court erred in rejecting their

causation evidence for the 2011 flood and various levee breaches in that year. (ECF No.

429). The government argues that the court erred in finding that plaintiffs had met their

causation burden for the flooding in 2007, 2008, 2010, 2013, and 2014. (ECF No. 436).

I.     LEGAL STANDARDS FOR MOTIONS FOR RECONSIDERATION

       Under Rule 59(a)(1) of the Rules of the United States Court of Federal Claims

(“RCFC”), the court, “in its discretion, ‘may grant a motion for reconsideration [,]’” if

“‘there has been an intervening change in the controlling law, newly discovered evidence,

or a need to correct clear factual or legal error or prevent manifest injustice.’” Biery v.

United States, 818 F.3d 704, 711 (Fed. Cir. 2016) (quoting Young v. United States, 94

Fed. Cl. 671, 674 (2010)). The Supreme Court has held that motions for reconsideration

“may not be used to relitigate old matters, or to raise arguments or present evidence that

                                              7 
could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554

U.S. 471, 485 n.5 (2008) (quoting 11 Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 2810.1 (2d ed. 1995)); see also Lone Star Indus., Inc. v. United

States, 111 Fed. Cl. 257, 259 (2013) (“A Rule 59 motion ‘must be based upon manifest

error of law, or mistake of fact, and is not intended to give an unhappy litigant an

additional chance to sway the court.’”) (quoting Fru-Con Constr. Corp. v. United States,

44 Fed. Cl. 298, 300 (1999)). “A court . . . will not grant a motion for reconsideration if

the movant ‘merely reasserts . . . arguments previously made . . . all of which were

carefully considered by the Court.’” Ammex, Inc. v. United States, 52 Fed. Cl. 555, 557

(2002) (quoting Principal Mut. Life Ins. Co. v. United States, 29 Fed. Cl. 157, 164

(1993)). Rather, “the movant must point to a manifest (i.e., clearly apparent or obvious)

error of law or a mistake of fact.” Id. (citing Principal Mut. Life Ins. Co., 29 Fed. Cl. at

164); Lucier v. United States, 138 Fed. Cl. 793, 798-99 (2018). “‘Manifest,’ as in

‘manifest injustice,’ is defined as clearly apparent or obvious,” Lucier, 138 Fed. Cl. at

799 (quoting Ammex, 52 Fed. Cl. at 557), and therefore, as the court recently explained, a

party “seek[ing] reconsideration on the ground of manifest injustice, . . . cannot prevail

unless it demonstrates that any injustice is apparent to the point of being almost

indisputable.” Id. (citations and internal quotation marks omitted).

II.    ST. BERNARD PARISH IS AN INERVENING CHANGE IN
       CONTROLLING LAW

       Shortly after the parties’ reconsideration motions were filed, the Federal Circuit

issued its decision in St. Bernard Parish v. United States, 887 F.3d 1354 (Fed. Cir. 2018),


                                              8 
cert denied. No. 18-359, 2019 WL 113112 (U.S. Jan. 7, 2019). In St. Bernard Parish,

which involved flooding in connection with Hurricane Katrina, the Federal Circuit

addressed several legal issues that are also at issue in this case. Specifically, the Circuit

clarified the standard and proof needed to establish causation when the government is

sued for a taking based on flooding. The parties have briefed the legal implications of St.

Bernard Parish on this case.

       In St. Bernard Parish, the Federal Circuit was asked to address whether the

government’s failure to maintain a channel, the Mississippi River-Gulf Outlet

(“MRGO”), along the Mississippi River in the City of New Orleans could support a

taking claim where the failure to maintain and manage the channel was shown to have

caused erosion and the eventual destruction of a levee which had historically protected

the plaintiffs from past flooding. In reversing the trial court and rejecting the plaintiffs’

takings claims on the theory presented, the Federal Circuit addressed several legal issues

relevant to the pending case. These include the following.

       First, the Circuit made clear that the “government cannot be liable for failure to

act, but only for affirmative acts . . . .” St. Bernard, 887 F.3d at 1360. The Circuit

explained that “in the flooding context . . . precedent [has] uniformly based potential

takings claims on affirmative government acts.” Id. at 1361 (citing the Supreme Court’s

decision in Ark. Game & Fish Comm’n v. United States, 568 U.S. 23, 27-8 (2012) (the

affirmative act of the government releasing water from a government constructed dam)

and the Federal Circuit’s decision Ridgeline v. United States, 346 F.3d 1346, 1351, 1355

(Fed. Cir. 2003) (government construction of a parking facility increased storm water

                                               9 
runoff)). Quoting from the Supreme Court’s decision in Sponenbarger, the Circuit

however noted that government cannot be held liable for a taking if the government’s

flood reducing actions do not provide adequate flood protection. Id. at 1361 (quoting

United States v. Sponenbarger, 308 U.S. 256, 265 (1939) (“[w]hen undertaking to

safeguard a large area from existing flood hazards, the Government does not owe

compensation under the Fifth Amendment to every landowner which it fails to or cannot

be protected.”)). The Circuit explained that a plaintiff’s remedy for the government’s

failure to act in this instance, “lies in tort.” Id. at 1362.

       Second, the Circuit explained that “causation requires a showing of ‘what would

have occurred’ if the government had not acted.” Id. (citing United States v. Archer, 241

U.S. 119, 132 (1916)). “In order to establish causation, a plaintiff must show that in the

ordinary course of events, absent government action, plaintiffs would not have suffered

the injury.” Id. Citing several flooding cases, the Circuit explained that to establish

causation a plaintiff must establish what damage would have occurred without the

government having taken any action in connection with decreasing as well as increasing

the alleged flooding risk. The Circuit noted for example, that in Arkansas Game where

the government had constructed a dam and then allowed for releases that resulted in

down-stream flooding that to establish causation, “‘the proper comparison would be

between the flooding that occurred prior to the construction of the [dam] and the flooding

that occurred during the deviation period,’ emphasizing that the causation analysis

considers causation based on the entirety of the government action, not merely the

deviation from the original water-release policy.” Id. at 1364-65 (quoting Ark. Game,

                                                10 
736 F.3d at 1372 n.2).2 The Circuit also cited a litany of cases from the Circuit and this

court to the effect that where similar flooding would have happened without any

government action that flooding takings claims fail. Id. at 1363, n. 8.3

              Third, the Circuit discussed how the “but for” world should be approached where

the government takes actions that both decrease and increase flood risks to property. The

Circuit stated that if the government has taken actions that have increased the risk of

flooding and other actions that have decreased the risk of flooding, the plaintiff, to

establish causation, must take into consideration both the government sets of actions -

those that have increased flooding and those that decreased the risk of flooding in the

“but for” world analysis to prove causation. Id. at 1365 (“Thus, the causation analysis

must consider both risk-increasing and risk-decreasing government actions over a period

of time[.]”). In this connection, the Circuit explained that government actions that have

decreased flooding must be considered together with government actions that have

increased flooding as long as the “government actions [are] directed to the same risk that


                                                            
2
   In this connection, the Federal Circuit noted that the dam in Arkansas Game was designed to
maintain pre-dam river flow. St. Bernard, 887 F.3d at 1365 n. 11 (“[T]he original water-release
policy (before the deviation) mimicked the pre-dam water flows. Therefore comparing the
flooding that occurred with the deviation to the flooding that would have occurred under the
original water-release policy, rather than to what would have occurred before the dam was built,
had no impact on the outcome.”).
3
   Bartz v. United States, 633 F.2d 571, 577 (Ct. Cl. 1980) (finding no taking when “excessive
precipitation was the root cause of the flooding experienced by plaintiffs,” and in most instances,
flooding “would in all likelihood have happened without the existence of the upstream dam”);
ARK-MO Farms, Inc. v. United States, 530 F.2d 1384, 1386 (Ct. Cl. 1976) (“No proof was made
that [the dam] or any other consequence of the [government] project was the cause of the floods
complained of. This failure of proof would alone dispose of plaintiff’s case.”); Coates v. United
States, 110 F.Supp. 471, 475 (Ct. Cl. 1953) (no taking where “plaintiffs have not been able to
establish that the land would not have been flooded had there been no dikes”). 
                                                               11 
is alleged to have caused the injury to the plaintiffs.” Id. The Circuit cited John B.

Hardwicke Co. v. United States, 467 F.2d 488 (Ct. Cl. 1972) to explain why in

Hardwicke, as in St. Bernard Parish, the government’s flood increasing and flood

decreasing actions were sufficiently related to be considered together in a “but for”

analysis. The Circuit explained that in evaluating the relatedness of government action,

relatedness means that the government actions are related to the same risk, i.e. flooding

from the same body of water. Id. The Circuit rejected the argument advanced by the

landowners that the government’s flood increasing actions and the government’s flood

decreasing actions must be part of the same project. Id. (Plaintiffs “contend that the

relevant beneficial government action must be part of the same project . . . That is not

correct.”).

       Recognizing that a different “but for” world comparison might be appropriate

where the government’s flood increasing actions were taken after the government’s risk

reducing actions were taken, the Circuit left for another day how it would rule in that

factual context. Citing John B. Hardwicke, in footnote 14 of its opinion, the Circuit noted

that it has previously recognized in dicta that if the flood increasing government action

comes after the flood reducing government action, the risk reducing action would still

have to be considered in evaluating causation if the risk-increasing action was

“contemplated” at the time the risk-reducing action was taken. Id. at 1367, n. 14.

       In applying the Circuit’s holdings in St. Bernard Parish to this case, the court

DENIES both the plaintiffs’ and the government’s motions for reconsideration for the

reasons that follow.

                                             12 
III.   THE MOTIONS FOR RECONSIDERATION

       A.     Plaintiffs’ Motion for Reconsideration Must Be Denied After St.
              Bernard Parish

       The plaintiffs argue that the court erred in rejecting their claims for 2011 because

the court erred in finding that plaintiffs had not established causation. The plaintiffs argue

that “but for the Corps’ change in priorities as to flood control under the [Corps’] new

Master Manual, the change from a preemptive priority under the 1979 Master Manual to

a reactive priority [regarding flood control], the peak System releases in the summer of

2011 would have been much smaller.” See Pls.’ Mot. for Recon. at 5. (ECF No. 429).

The plaintiffs thus argue that the court erred in finding that the flooding in 2011 was not

caused by the changes implemented by the Corps after 2004.

       The government argues, in response, that under the causation standard now set by

the Federal Circuit in St. Bernard Parish, plaintiffs’ taking claims for 2011 and for all

other years must be set aside. The government contends that under St. Bernard Parish,

the plaintiffs had the burden of showing that the flooding plaintiffs experienced in the

actual world would not have occurred in a “but for” world where all of the Corps’ flood

increasing and flood reducing actions are eliminated from consideration. The government

argues because the plaintiffs failed to present any evidence of a “but for” world where the

government’s significant flood reducing actions on the Missouri River are eliminated

from consideration together with the government’s alleged post-2004 flood increasing

actions, all of plaintiffs’ takings claims fail and must be dismissed.




                                             13 
       The plaintiffs concede that they did not compare the flooding that occurred in

2011 with what would have occurred in 2011 if the Missouri River System, the dams and

reservoirs together with the River structures, and federal levees and federally-funded

levees had never been built. They argue, however, that the government’s reading of St.

Bernard Parish goes too far. The plaintiffs argue that the St. Bernard Parish “but for”

world test does not apply in this case because there is no nexus between the government’s

flood increasing actions and the government’s flood reducing actions. Relying on the

Circuit’s discussion of Hardwicke in the text of the opinion, the plaintiffs argue because

the Corps’ post-2004 flood increasing actions are not related in time or purpose to the

Corps’ pre-2004 flood reducing actions, that the Corps’ earlier flood reducing actions

were properly considered as part of the baseline for comparing the pre-2004 with the

post-2004 worlds, including 2011. Plaintiffs argue that the causation test articulated in St.

Bernard Parish applies only where, as in St. Bernard Parish, the risk increasing actions

of the government were directly tied to the government’s flood reducing actions.

       The government argues that plaintiffs’ attempt to distinguish the pending case

from St. Bernard Parish is not supported. The government argues that the government’s

flood reducing actions and flood increasing actions are directly tied to the same risk,

flooding from the Missouri River, and that for this reason the flood reducing and flood

increasing actions must be considered together. The government further argues that to the

extent the plaintiffs are relying on the Hardwicke exception identified by the Circuit in

footnote 14 of the St. Bernard Parish decision to argue that a different rule should apply

because the government’s risk increasing actions in this case came after the flood

                                             14 
reducing actions, that argument is without merit. The government argues that the

discussion in Hardwicke plaintiffs rely on was only dicta in Hardwicke and thus is not

binding. The government argues that the test established in St. Bernard Parish by the

Circuit is binding and that under its “but for” test the plaintiffs’ entire case must be

dismissed.

       There is no question that the Circuit’s decision in St. Bernard Parish is an

intervening change in controlling law that requires the court to re-examine its opinion

regarding causation. In St. Bernard Parish the Circuit made clear, that if the government

actions the plaintiffs claim have caused a taking by increasing flooding on their property

are “related” to other government actions that have reduced flooding on plaintiffs’

properties, the government’s flood reduction actions must be eliminated together with the

flood increasing actions in the “but for” world comparison. The court does not find the

plaintiffs’ argument on reconsideration that the government’s flood increasing actions in

this case are not directly related to the government’s flood decreasing actions to be

supported by the trial record. The evidence established that the Corps’ System and River

Changes were taken in direct response to the Corps’ flood control actions on the Missouri

River and that the Corps took care to consider the impact of the River and System

Changes on the Corps’ flood reduction actions in designing and implementing those

actions to avoid or minimize adverse flooding consequences. Ideker, 136 Fed. Cl. at 705

(“The court does not question the Corps’ efforts to minimize flooding in constructing and

maintaining SWH and ESH [River and System Changes].”)



                                              15 
       St. Bernard Parish requires the court to consider all government actions “directed

to the same risk that is alleged to have caused the injury to plaintiffs.” 887 F.3d at 1365.

The Circuit did not say that the government actions must serve the same flood control

purpose or that the actions must be near in time. To the contrary, the Circuit recognized

that the MRGO project at issue in St. Bernard Parish was a threat to the flood protection

provided by the levees because of concerns regarding MRGO. Id. As the Circuit

explained, “[w]hen the government takes actions directly related to preventing the same

type of injury on the same property where the damage occurred, such action must be

taken into account even if the two actions were not the result of the same project.” Id. at

1366. For this reason, the court finds the Circuit’s reliance on Hardwicke in the text of

St. Bernard Parish unpersuasive.

       Here, as in St. Bernard Parish, the government built the Missouri River System to

provide, among other purposes, significant flood control to plaintiffs and the evidence

established that the Corps continues to provide significant flood protection to plaintiffs

even after the implementation of the MRRP. Thus, to prove causation the plaintiffs

needed to consider a “but for” world without any of the Missouri River System

protections or Corps’ flood decreasing actions together and without any of the Corps’

post-2004 flood increasing actions. The plaintiffs did not make this case. Accordingly,

unless the court finds that the potential Hardwicke exception argued in plaintiffs’




                                             16 
reconsideration briefs and discussed in footnote 14 of the St. Bernard Parish opinion

applies, plaintiffs’ motion for reconsideration must be denied.4

              The court understands that the plaintiffs contend on reconsideration that the

Hardwicke exception requires the inclusion of the Missouri River protection in the “but

for” world. As such, plaintiffs claim that they established at trial that if the Corps had

followed the 1979 Manual it could have lessened the flooding the plaintiffs experienced

in 2011. They argue that the Corps’ flood increasing actions came after the Corps’ flood

reducing actions and that until 2004 no one contemplated that the Corps’ would change

its flood protection priority approach. Pls.’ Resp. at 8-9 (ECF No. 440).

              Additionally, in their motion for reconsideration the plaintiffs argue that the

court’s factual findings regarding the cause of flooding in 2011 are clearly erroneous

because the court failed to consider how flooding in 2011 was caused by the System and

River Changes after 2004. Plaintiffs argue that the court clearly erred in concluding that

the releases in 2011 were not the result of the post-2004 System Changes. According to

plaintiffs, had the court properly understood plaintiffs’ claim and evidence it would have

found that the Corps’ System and River Changes, which occurred after the Corps’ actions




                                                            
4
 The plaintiffs argue that if the court finds that plaintiffs needed to take the Missouri River
System protections into account to establish causation then there could never be a taking by the
government for any flooding on the Missouri River in the areas protected by the System and this
would create an exception to a taking by flooding which was expressly rejected by the Supreme
Court in Ark. Game, 568 U.S. at 31-32. The court has considered this contention and finds that it
does not have to reach this issue because, for the reasons discussed above, the court finds that the
Hardwicke exception discussed by the Circuit in footnote 14 is potentially applicable in
circumstances like those presented in the pending case. 
                                                               17 
to decrease flooding, were the cause of the 2011 flood and that they prevail under the

Hardwicke exception.

       The government argues as discussed above that the Hardwicke exception should

not be adopted by the court but that even if it were adopted by the court the plaintiffs

have still failed to meet their burden of proof on the issue of causation for the 2011 flood.

The government argues that the court did not misunderstand the basis for plaintiffs’

causation analysis for 2011. Rather, as discussed above, the government argues that

plaintiffs relied at trial, as they do now, on evidence to show that the changes the Corps

had to make to its Master Manual to implement the MRRP caused the flooding. As

discussed, plaintiffs presented evidence to show that flooding would not have occurred

had the Corps maintained the approach it followed for large inflows into the System

Reservoirs under the 1979 Master Manual based on a comparison of the inflows in 2011

with the inflows in 1997. Ideker, 136 Fed. Cl. at 654, 693. As discussed, plaintiffs’

expert Dr. Christensen compared what happened using the new Master Manual with what

would have happened if the Corps had used the 1979 Master Manual based on the 1997

inflows to the reservoirs. The government explains that the court’s factual findings

rejecting Dr. Christensen’s opinion are supported by the evidence and should not be

reconsidered.

       The court agrees with the government, assuming that the Hardwicke exception

outlined in St. Bernard Parish applies to this case with regard to the 2011 flood, that the

plaintiffs have not established a basis for reconsideration. The plaintiffs have rehashed

the same evidence and same expert theories the court considered and rejected at trial.

                                             18 
They have not presented any new evidence or identified any clear error in the court’s

essential finding that unprecedented and unforeseeable inflows to the System in 2011

were the cause of the 2011 flood and that the Corps’ alleged change in priorities or need

to maintain larger volumes in the reservoirs for species protection did not cause the 2011

flooding.

              In view of the foregoing, even if the Hardwicke exception applies, the plaintiffs

cannot prevail on reconsideration.5 The court determined based on the evidence

presented at trial that plaintiffs had not met their causation burden. Plaintiffs have not

shown how the court’s findings are clearly wrong.6 Moreover, to the extent the plaintiffs

continue to question the Corps’ decision not to act earlier and to release more water


                                                            
5
  Implicit in the court’s findings regarding the cause of the flooding in 2011 was the court’s
conclusion that under both the Corps’ 1979 Master Manual and 2004 Master Manual that
extreme releases from the dams that would result in flooding were “contemplated” in the event
the System Reservoirs could not hold the amount of inflow and the System was threatened.
Ideker, 136 Fed. Cl. at 692. For this reason as well, plaintiffs’ reliance on the Hardwicke
exception fails. In the circumstances of 2011, such releases were contemplated. This response by
the Corps was contemplated when the System was designed, as reflected in the 1979 and earlier
Master Manuals. Thus, the 2011 flood does not meet the criteria for the Hardwicke exception.
6
  The court also finds that separate and apart from the failings of their causation argument,
plaintiffs have also failed to meet the standards of reconsideration with regard to their objections
to the court’s foreseeability findings for the 2011 flood. The plaintiffs argue that the court erred
in looking at foreseeability in 2011 as opposed to 2004 when the Corps began to implement the
MRRP. The plaintiffs argue that in 2004 and in planning the MRRP the Corps knew that it was
potentially increasing the risk of flooding as a direct consequences of its actions. The court
rejected this contention on the grounds as discussed above that the extreme flooding in 2011 was
caused by the Corps making extreme releases to save the System. The court determined that the
excessive inflows in 2011 could not have been foreseen by the Corps and indeed they would not
have made any difference because as discussed above the court determined that the plaintiffs had
failed to prove that the Corps’ actions in response to the extreme inflows in 2011 would have
been different had it been following the 1979 Manual. Put another way, having failed to establish
the cause of the flooding, the plaintiffs could not prove how that flooding was foreseeable. The
Corps’ extreme measures to address extreme inflows was foreseeable and was not changed by
the Corps’ post-2004 System and River Changes.  
                                                               19 
earlier in the year under the 1979 Master Manual, that challenge is not grounds for

reconsideration. The plaintiffs’ contentions regarding the Corps’ failure to release water

sooner from the System reservoirs is a challenge to government inaction and sounds in

tort, regardless of whether it was pled as a tort. The Circuit in St. Bernard Parish had

made clear that the government’s failure to act cannot support a taking claim. St. Bernard

Parish, 887 F.3d at 1362.

       For all of these reasons, the plaintiffs’ motion for reconsideration is DENIED.

       B.     The Government’s Motion for Reconsideration Is Denied

       The government argues that under the standards for causation set in St. Bernard

Parish, the court’s causation finding in favor of certain plaintiffs in connection with

flooding in 2007, 2008, 2010, 2013, and 2014 must be set aside. Specifically, the

government argues that the claims of the plaintiffs who established causation and

foreseeability in Phase I must be dismissed because those plaintiffs failed to prove the

flooding they experienced in those years would not have occurred without the Missouri

River System and the flood reduction actions for those same years. The government

contends that the plaintiffs in this case, like the plaintiffs in St. Bernard Parish, can only

establish causation for flooding in the years in question if they can show that the flooding

that occurred in those years would not have occurred had the government not constructed

the Missouri River flood control system.

       There is no serious question that the plaintiffs did not present evidence to make

that comparison. In response to the government’s motion, the plaintiffs argue they do not

have to meet the causation standard laid out by the government. The plaintiffs, again

                                              20 
relying on the language in St. Bernard Parish regarding Hardwicke, argue that there is no

nexus between the government’s flood reducing actions and the government’s flood

increasing actions. They also argue that the Hardwicke exception to the causation test

discussed in footnote 14 of the St. Bernard Parish decision should apply for plaintiffs to

establish causation for the years in question.

       The plaintiffs argue that because the Corps has taken flood risk-increasing actions

that were not contemplated when the Missouri River System was created that this is

precisely the situation the Circuit contemplated when it cited Hardwicke in the text of its

decision and certainly when it noted the Hardwicke exception in footnote 14.

Specifically, plaintiffs argue that they established , as discussed in the court’s decision,

that the Corps’ actions in destroying structures designed to keep the Missouri River

straight and self-scouring has increased flooding on the River for the purpose of

increasing habitat for threatened and endangered species and that these actions together

with the Corps’ decision to intentionally allow these same structures to deteriorate have

made the River more likely to flood onto land or block drainage or cause seepage during

periods of high River flow. The plaintiffs also argue that they have proven that the Corps’

releases from the dams for the benefit of endangered and threatened species have led to

more flooding. Returning the River to its natural state, plaintiffs contend, is not related to

or has no nexus with the Missouri River System built primarily for flood control in the

1940s through 1960s. The plaintiffs further argue that returning the River to a more

natural state was certainly not contemplated when the Missouri River System was

created. For these reasons, plaintiffs argue that the proper “but for” world comparison for

                                              21 
the years at issue is, as the court found, between the world before the Corps was required

to make the System and River Changes at issue in this case and the world after the Corps

began to make the System and River Changes post- 2004.

       As noted above, with regard to 2011, the government argues that the Corps’

System and River Changes are directly related to each other and thus plaintiffs cannot

prevail on a theory that there is no nexus between the government's flood reducing

actions and flood increasing actions. The government also argues, as discussed above,

that the court should not adopt an exemption in line with the dicta expressed in John

Hardwicke for the alleged flooding that occurred in 2007, 2008, 2010, 2013, and 2014.

       Whether plaintiffs have established causation for flooding in 2007, 2008, 2010,

2013, and 2014, based on the comparison made between the River under the 1979 Master

Manual and the new Master Manuals and MRRP, presents a close question following the

Circuit’s decision in St. Bernard Parish. The court finds that while the flood decreasing

actions and flood increasing actions are related for purposes of St. Bernard Parish for the

same reasons as discussed above with regard to the 2011 flood that plaintiffs in this case

should be able to avail themselves of the exception identified by the Circuit in footnote

14 regarding Hardwick. The parties have not identified, and the court has not found, any

flooding case identical to the present case. In this case, for the first time, plaintiffs claim

that they are experiencing more flooding and more severe flooding because of actions the

Corps has taken and is continuing to take below Gavins Point Dam to return the River to

its more natural state to prevent jeopardizing threatened and endangered species and to

improve and create habitat. Although the Corps has always had multiple obligations

                                              22 
under the federal statutes governing operations of the Missouri River System, including

fish and wildlife protection, it was not until 2004 and a court order mandating that the

Corps give priority to threatened and endangered species that the Corps began to take a

series of very specific actions within the River and in its System releases to accomplish

that legal requirement. Ideker, 136 Fed. Cl. 668-69. The court found that these actions

have in fact increased the risk of flooding along the River. Id. at 689.

       The court’s findings of fact establish that the changes made to the Corps’ River

and Mainstem system after the court order requiring the Corps’ compliance with the ESA

increased flooding to a degree that would not have been contemplated when the River

and Mainstem System structures were planned. Id. at 690. This is not to say that the

Corps did not have fish and wildlife protection on its list of statutory obligations. Rather,

as the court found, the Corps’ actions designed to return the Missouri River to a more

natural state was outside the contemplation of the Corps. In this circumstance, a

comparison between the “but for” world before the Corps began to undertake significant

actions to return the River to a more natural state in 2004 and the current post-2004 world

is the appropriate comparison under the Hardwick exception identified in St. Bernard

Parish in footnote 14. Because that was the comparison the court considered to

determine causation for the representative plaintiffs for the years of flooding challenged

by the government in its motion for reconsideration, the government’s motion for

reconsideration is DENIED.

       Although the court has denied the government’s motion for reconsideration, as the

court has previously held, the court has left for Phase II whether the off-setting benefits

                                             23 
from the Corps’ flood control actions must be considered in determining whether there

has been a taking and if so whether there has been a taking for any of the years in

question. Specifically, the court has left for Phase II whether the Supreme Court’s

holding in Sponenbarger would preclude the court from finding that there has been a

taking of any of the plaintiffs’ properties where the government’s actions inflicted “slight

damage” as compared to the benefits plaintiffs have received from the government’s

flood control efforts on the Missouri River as a whole.7

                                                               CONCLUSION

              For the above-stated reasons the plaintiffs’ and the government’s motions for

reconsideration are DENIED.8 The parties shall have until March 22, 2019, to propose a

schedule for resolving the remaining issues in this litigation.

              IT IS SO ORDERED.


                                                                            s/Nancy B. Firestone
                                                                            NANCY B. FIRESTONE
                                                                            Senior Judge




                                                            
7
    This analysis would also include the construction of federal levees and federally-funded levees.

8
  The court GRANTS the parties joint request (ECF Nos. 429 and 430) to move Merrill Sargent.
Deceased, and Ron and Dale Sargent one of the plaintiffs from group two (plaintiffs that
established causation and foreseeability) to group one (plaintiffs that established causation,
foreseeability, and severity) for Phase II. Accordingly, the court finds that Merrill Sargent.
Deceased, and Ron and Dale Sargent have shown causation, foreseeability and severity for
flooding in 2008, 2010, and 2014.
                                                                   24 
