BIG OAK FARMS, INC. et al v. USA

Filing 61

ORDER REINSTATING plaintiffs' takings claims and DENYING 56 Motion for Certification for Interlocutory Appeal. Joint Status Report on revised discovery schedule due by 8/2/2013. Signed by Judge Nancy B. Firestone. (lb) Copy to parties.

In the United States Court of Federal Claims
No. 11-275L
(Filed: July 23, 2013)

BIG OAK FARMS, INC., et al.,
Plaintiffs,
v.
THE UNITED STATES,
Defendant.

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ORDER REINSTATING PLAINTIFFS’ TAKINGS CLAIMS AND DENYING
PLAINTIFFS’ MOTION FOR CERTIFICATION FOR INTERLOCUTORY
APPEAL
The court is in receipt of the parties’ briefing on plaintiffs’ motion for
modification of this court’s May 23, 2013 order and for a stay pending appeal of that
order. Plaintiffs seek certification for interlocutory appeal pursuant to 28 U.S.C. §
1292(d)(2) (2012) and a staying pending that appeal of the court’s May 23, 2013 order
denying reconsideration of its May 4, 2012 decision rejecting plaintiffs’ takings claims.
See Big Oak Farms, Inc. v. United States, 105 Fed. Cl. 48 (2012). The court’s May 23,
2013 order held that the Supreme Court’s recent opinion in Arkansas Game and Fish
Commission v. United States, 133 S. Ct. 511 (2012), did not affect the court’s opinion in
this case dismissing plaintiffs’ takings claims based on a single flooding event. In
particular, the court found that the Arkansas Game decision, while expressing the general
opinion that flooding should not be set apart from other types of government intrusion on
property, was limited to the question of whether recurring flooding events, if temporary,
amount to a taking. Order Following Arkansas Game at 3, ECF No. 54.
Plaintiffs argue that there is substantial ground for difference of opinion on this
issue, because the court’s order interprets and applies a new Supreme Court decision to a
complex and longstanding body of case law regarding government taking by flooding,
and that, therefore, interlocutory review of the court’s order is appropriate in this case.
The government opposes plaintiffs’ motion arguing that there is no substantial ground for
difference of opinion regarding a controlling question of law on the application of

Arkansas Game, and that interlocutory appeal will not materially advance the ultimate
termination of this litigation.
Although the court continues to disagree with plaintiffs’ argument that the
Supreme Court expanded on flooding takings liability in Arkansas Game in a way that
allows for a single flooding event to constitute a taking, after careful consideration, the
court has determined that allowing plaintiffs to develop their takings claims parallel with
their remaining breach of contract claims will promote the most efficient resolution of
this action.
Therefore, rather than certify this legal question for interlocutory review, the court
will reinstate Counts I and II of plaintiffs’ Second Amended Class Action Complaint,
ECF No. 32, to allow plaintiffs to pursue their takings claims based on the May 2, 2011
flood and the subject flood plan. The court will allow plaintiffs to develop a factual
record to establish whether a taking has occurred under the fact-based, balancing test
outlined in Arkansas Game, 133 S. Ct. at 522-23, for cases involving recurring flooding.
Specifically, the parties will be allowed discovery to address the balancing factors
identified by the Supreme Court in Arkansas Game: “the degree to which the invasion is
intended or is the foreseeable result of authorized government action,” the character of
the land at issue and whether the invasion interferes with the landowners’ “reasonable
investment-backed expectations,” and the “[s]everity of the interference.” Id. (citations
omitted).
In addition, the Arkansas Game Court did not address the principles of flooding
takings jurisprudence set forth in United States v. Sponenbarger, 308 U.S. 256 (1939) or
Danforth v. United States, 308 U.S. 271 (1939). It is well-settled that “[c]ourts do not
normally overturn a long line of earlier cases without mentioning the matter.” John R.
Sand & Gravel Co. v. United States, 552 U.S. 130, 137 (2008). The Arkansas Game
Court did not expressly overturn Danforth or Sponenbarger, and limited the question
before it to “whether a taking may occur . . . when government-induced flood invasions,
although repetitive, are temporary.” Arkansas Game, 133 S. Ct. at 515 (emphasis added).
The parties must therefore also confront the legal standards set forth in Danforth and
Sponenbarger regarding the government’s takings liability in this case. In particular, the
parties must address whether plaintiffs have or have not received greater benefit than
detriment as a result of the construction of the Birds Point-New Madrid floodway and the
floodway plan, in light of the heightened protection of the current system, and whether
plaintiffs’ land has been exposed to more frequent floods that it would have otherwise
experienced absent government action, given the historic flooding of certain areas within
the flood plain. Sponenbarger, 308 U.S. at 266 (“The Government has not subjected
respondent’s land to any additional flooding, above what would occur if the Government
had not acted; and the Fifth Amendment does not make the Government an insurer that
the evil of floods be stamped out universally before the evil can be attacked at all.”);
Danforth, 308 U.S. at 286 (“The Government could become liable for a taking, in whole
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or in part, even without direct appropriation, by such construction as would put upon this
land a burden, actually experienced, of caring for floods greater than it bore prior to the
construction. . . . We cannot conclude that the retention of water from unusual floods for
a somewhat longer period or its increase in depth or destructiveness by reason of the setback levee, has the effect of taking.”); see also Matthews v. United States, 87 Ct. Cl. 662
(1938).
Accordingly, Counts I and II of plaintiffs’ Second Amended Class Action
Complaint, encompassing plaintiffs’ takings claims, are REINSTATED. Plaintiffs’
motion for modification of the court’s May 23, 2013 order, certification for interlocutory
appeal, and for a stay pending that appeal is DENIED. The parties shall submit a revised
discovery schedule by August 2, 2013 with regard to the breach of contract claims and
the newly-reinstated takings claims. After discovery, the court will revisit the appropriate
next steps in this case.
IT IS SO ORDERED.

s/Nancy B. Firestone
NANCY B. FIRESTONE
Judge

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