IDEKER FARMS, INC., et al v. USA

Filing 535

REPORTED ORDER denying 513 Motion to Amend Pleadings - Rule 15(b) on Requested Grounds. filed by USA. Signed by Senior Judge Nancy B. Firestone. (gd) Service on parties made.

In the United States Court of Federal Claims
No. 14-183L
(Filed: January 9, 2020)

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

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Motion to Amend Answer, RCFC 15;
Taking; Fifth Amendment; Affirmative
Defense; Sponenbarger; Relative
Benefits; Futility; Flooding

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 Jeane E. Williams, Deputy Assistant Attorney
General, for defendant. Jacqueline C. Brown, Brent Allen, Elizabeth McGurk, and Brad
Leneis, Washington, D.C., of counsel.
ORDER DENYING MOTION TO AMEND ANSWER ON THE GROUNDS
REQUESTED
FIRESTONE, Senior Judge
Pending before the court is the United States’ motion to amend its answer
following the Phase I trial on causation and related liability issues in the above-captioned
case. In the Phase I decision, Ideker Farms, Inc. v. United States, 136 Fed. Cl. 654
(2018), and in the decision on reconsideration, Ideker Farms, Inc. v. United States, 142
Fed. Cl. 222 (2019), the court determined that the United States had caused flooding on

some, but not all, of the representative plaintiffs’ properties in connection with actions
taken by the United States Army Corps of Engineers (“Corps”) under the Missouri River
Recovery Program (“MRRP”). Specifically, the court determined that the MRRP, which
is designed to return the Missouri River to a more natural state, led to greater flooding on
plaintiffs’ properties than had existed before the MRRP started in 2004.1 Based on the
evidence presented and as explained in the decision on reconsideration, the court
concluded that the United States could be liable for a taking based on the changes the
Corps has made and is continuing to make under the MRRP to meet its obligations under
the Endangered Species Act (“ESA”), 16 U.S.C. § 1536.
The parties are now preparing for the Phase II trial to resolve any remaining
liability issues and to determine what just compensation, if any, is due for the taking of a
temporary or permanent flowage easement on the properties owned or leased by the
representative plaintiffs selected for Phase II. See, e.g., Disc. Sch. And Scope of Disc. For
Phase II Order, May 16, 2019 (ECF No. 479).2
The government filed its November 5, 2019 motion to amend its answer under
Rule 15(a) of the Rules of the United States Court of Federal Claims (“RCFC”) pursuant

As discussed at length in the court’s causation decision, under the MRRP, the Corps has made
changes “to its operation of the Mainstem Reservoir and Dam System, . . . and . . . to the
[Missouri River Bank Stabilization and Navigation Project] . . . to meet its ESA obligations
under the 2003 [Biological Opinion].” Ideker Farms, 136 Fed. Cl. at 667-68.
1

2

In the Phase I trial as discussed below the court heard testimony regarding flooding on 44
properties owned by 44 of the 340 plaintiffs in the case. The parties have now identified 3 of
those plaintiffs to serve as representative plaintiffs in the Phase II trial.
2

to the court’s scheduling order. Final Disc. Sch. And Prelim. Pre-Trial Order, Oct. 17,
2019 (ECF No. 509); Def.’s Mot. to Amend Answer (“Def.’s Mot.”) (ECF No. 513). In
its proposed amendment to its answer, the government seeks to include a liability-related
defense based on the “relative benefits” doctrine set forth in United States v.
Sponenbarger, 308 U.S. 256 (1939). Def.’s Mot., Attach. 4 (ECF No. 513-4). In
Sponenbarger, 308 U.S. at 266-67, the Supreme Court held that “if governmental
activities inflict slight damage upon land in one respect and actually confer great benefits
when measured in the whole, to compensate the landowner further would be to grant him
a special bounty.” If the amendment is allowed, the government will seek to show that
the United States cannot be found liable for a taking in connection with the
implementation of the MRRP because the government can show that any flooding impact
from the MRRP is “slight” in comparison to all of the flood protection plaintiffs have
received by virtue of the Corps’ operation of the Missouri River Mainstem System
(“Mainstem System”) and the Missouri River Bank Stabilization and Navigation Project
(“BSNP”). Def.’s Reply at 20 (ECF No. 526).
The government argues that under its reading of Sponenbarger the court must
weigh the relative benefits the plaintiffs received from all of the Corps’ actions on the
Missouri River separate from the court’s causation analysis, and in weighing the benefits
the court must consider the construction and maintenance of the Mainstem System and
the BSNP in deciding whether the flooding caused by the MRRP is “slight” in
comparison to what plaintiffs would experience without the Mainstem System of

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Reservoirs and Dams and the BSNP to determine whether the government is liable for a
taking.
The plaintiffs oppose the government’s motion to amend its answer on a variety of
grounds. The plaintiffs claim that the motion is untimely and prejudicial. Pl.’s Opp. at 9
(ECF No. 517). They also argue that the motion is futile because the government’s
proposed application of Sponenbarger to the facts of this case is not supported. Pl.’s Opp.
at 13. The plaintiffs argue that the government’s reading of Sponenbarger is too broad
where, as here, the changes to the Mainstem System and the BSNP required together with
other actions under the MRRP were not contemplated at the time the Mainstem System
and the BSNP were constructed.
Specifically, the plaintiffs argue that because the MRRP is aimed at returning the
Missouri River to a more natural state to meet the Corps’ obligations under the ESA, the
MRRP may not be considered together with the Corps’ flood control actions on the
Missouri River to determine the government’s liability for a taking under the Fifth
Amendment. Pl.’s Opp. at 25. In this connection, the plaintiffs concede that the benefits
they have received from the construction and maintenance of the Mainstem System and
the BSNP have been enormous. Indeed, much of the property at issue in this case is
former Missouri River bottom land created by accretion from construction of the BSNP.
They argue, however, that in deciding whether the MRRP has resulted in the taking of
flowage easements without compensation in contravention of the Fifth Amendment, the

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flooding impact from the MRRP must be evaluated separately from the flood protection
provided by the Corps’ Mainstem System and BSNP.
The plaintiffs argue that Sponenbarger does not require a comparison of flooding
on plaintiffs’ properties in a “but for” world without the Mainstem System and the BSNP
as the government proposes. Instead, the plaintiffs argue that the Mainstem System and
the BSNP are the baseline against which the court should determine if the MRRP has
resulted in a taking of a flowage easement on plaintiffs’ properties. Moreover, the
plaintiffs argue that this court’s causation decision and its reconsideration decision by
their terms necessarily require the Mainstem System and BSNP to serve as a baseline
against which the MRRP flood impacts must be weighed. Plaintiffs contend that the court
has already correctly determined that the proper comparison for deciding taking liability
in this case is the world with the MRRP and the “but for” world without the MRRP only.
The government responds that plaintiffs’ reading of Sponenbarger is too narrow
and that the court must consider the flooding of plaintiffs’ properties caused by the
Corps’ actions implementing the MRRP in the context of the enormous flood reduction
benefits the plaintiffs have received from the Corps’ construction and maintenance of the
Mainstem System and the BSNP. The government further argues that the court
previously reserved this issue for the next trial phase and thus the defense is neither
untimely nor prejudicial.
For the reasons that follow, the government’s motion to amend its answer to
include a defense based on its reading of Sponenbarger is DENIED. The court has
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determined that the flood protection provided by the Mainstem System and the BSNP is
the baseline of flood protection against which the additional flooding caused by the
MRRP should be judged for purposes of deciding both causation and government liability
for any taking in this case.
To the extent the government seeks to show in the Phase II trial that the Corps has
taken, post-2014, specific flood risk-reducing actions aimed at addressing the increase in
flood risk associated with the Corps’ MRRP activities, the court will allow the
government to introduce such evidence for the purposes of deciding the severity (if still
relevant), duration, and type of taking (temporary or permanent) for the representative
plaintiffs.
I.

PROCEDURAL HISTORY
Following a 55 day trial, evaluating the taking claims of 44 representative

plaintiffs for various years from 2007-2014, the court issued a 103-page trial opinion on
February 23, 2018. In the court’s opinion, the court evaluated whether the System and
River Changes the Corps began to implement in 2004 under the MRRP caused flooding
or increased flooding on plaintiffs’ properties for the years 2007, 2008, 2010, 2011, 2013,
and 2014.3 In evaluating causation, the court reviewed the extensive history of the
3

These included changes to the Corps’ management of the dams which required the Corps to
release water from the dams during periods of high water below the dams for the protection of
threatened and endangered species (“System Changes”). Ideker Farms, 136 Fed. Cl. at 668-69. It
also included various projects to dismantle dikes and revetments along the shoreline and to build
chutes and to widen the River channel in order “to restore the River to a more natural state,”
which had historically meandered miles inland (“River Changes”). Id. at 669. Specifically, as of
2014 the Corps “had undertaken 1,697 dike notching actions, 354 major modification actions, 63
dike lowering actions, 36 dike extension actions, 39 side-channel chute actions, 20 revetment
chute actions, 14 backwater actions, and 3 channel widening actions.” Id. at 702. The Corps also
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Corps’ actions in reengineering the Missouri River by creating the nation’s largest
reservoir and dam system and in straightening the River with dikes and revetments to
ensure that downstream of the dams the River ran faster and deeper from when the River
meandered across a large flood plain. The court also recognized that much of the property
at issue in the litigation was created because of the Mainstem System and the BSNP. The
court then examined the Corps’ efforts to address the impact reengineering the River had
on the natural environment, including threatened and endangered species and their
habitat, and concluded based on the evidence presented that the MRRP, which was
established to address these effects, gave rise to significant changes to the Corps’
management of the Missouri River; changes that had not been contemplated when the
Mainstem System or the BSNP were created. See Ideker Farms, 136 Fed. Cl. at 668; Id.
at 686; Ideker Farms, 142 Fed. Cl. at 225.
The court found that in deciding whether the actions taken to implement the
MRRP had caused flooding, the Mainstem System and the BSNP had to be viewed as the
baseline. Thus, in analyzing causation, the court found that the proper comparison was
the world with the MRRP and a “but for” world without the MRRP. See Ideker Farms,
136 Fed. Cl. at 690.

constructed shallow water habitat and emergent sandbar habitat for threatened and endangered
species. Id. at 694; see id. at 701 (explaining that shallow water habitat is made by “notching
dikes and revetments, allowing the same to deteriorate, dredging chutes, and creating backwaters
and chevrons”).
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Based on evidence presented by the parties, the court concluded that the changes
taken by the Corps under the MRRP had caused water surface elevations to rise which in
turn increased flooding on certain of plaintiffs’ properties for the years 2007, 2008, 2010,
2013, and 2014. Id. at 690. Specifically, the court found that the changes called for under
the MRRP have led “to more flooding or more severe or longer flooding than would have
occurred had these Changes not been made by the Corps.” Id. at 696-97. In this
connection, the court found that “[s]eepage and blocked drainage claims . . . are all tied to
higher [water surface elevations].” Id. at 720. The court concluded that, for certain
properties, the flooding that occurred in 2007, 2008, 2010, 2013, and 2014, was both
caused by the Corps’ MRRP and was the foreseeable result of implementation of the
System and River Changes under the MRRP. Id. The court further found that the
evidence presented by the government to show that the MRRP had no impact or a
positive impact on flood control was not supported and thus was unpersuasive. Id. at 709,
711.
Based on the court’s evaluation of the evidence, the court found that 28 plaintiffs
had established causation and could proceed to Phase II of the trial. The remaining
representative plaintiffs would be dismissed from the case. Specifically, the court found
that 14 plaintiffs had demonstrated that flooding on their property was the foreseeable
result of the Corps’ MRRP activities but the court left open the question of whether that
the flooding was sufficiently severe to establish a taking. Id. at 762. The court found an
additional 14 plaintiffs had established that the Corps’ MRRP activities were the

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foreseeable cause of the flooding on their properties and of sufficient severity to give rise
to a taking assuming all of the remaining factors for liability set by the Supreme Court in
Arkansas Game & Fish Commission v. United States, i.e. duration and the owner’s
reasonable investment-backed expectations, were met. Id. at 762; see Ark. Game & Fish
Comm’n v. United States, 568 U.S. 23, 38-39 (2012).
Both parties moved for reconsideration of the court’s Phase I decision. While their
motions were pending, the Federal Circuit issued its decision in St. Bernard Parish
Government v. United States, 887 F.3d 1354 (Fed. Cir. 2018), finding that the
government was not liable for certain flooding claims associated with Hurricane Katrina
in New Orleans. In this case, the court concluded on reconsideration that the holdings in
St. Bernard Parish were consistent with the court’s Phase I decision and that
reconsideration was not warranted for any of the other reasons presented to the court. See
Ideker Farms, 142 Fed. Cl. at 228.
In reaching this conclusion, the court specifically rejected the government’s
contention that the court erred in failing to consider all of the Corps’ flood risk-reducing
actions together with the MRRP in deciding causation. The court determined that where
the changes to the Corps’ management of the River required by the MRRP had not been
contemplated at the time the Corps had designed and constructed the reservoirs and dams
that make up the Mainstem System or the BSNP, that those flood risk-reducing actions
serve as a proper baseline in deciding whether later Corps’ actions have caused increased
flooding. The court found that this case fit squarely within the exception identified in
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footnote 14 of St. Bernard Parish opinion where the Federal Circuit clarified that it was
not addressing the situation where “the risk-reducing government action preceded the
risk-increasing action.” 887 F.3d at 1367 n.14 (citing John B. Hardwicke Co. v. United
States, 467 F.2d 488, 490-91 (Ct. Cl. 1972)). Under this exception, known as the
Hardwicke exception, a risk-reducing action that precedes a risk-increasing action would
only be considered if the risk-increasing action – here, the MRRP – was contemplated at
the time of the risk-reducing action – here the Mainstem System and the BSNP. See id.;
see also Ideker Farms, 142 Fed. Cl. at 228-232.
Following several status conferences regarding the scope of the Phase II trial, the
government on November 5, 2019, filed its formal motion to amend its answer to include
an affirmative defense based on Sponenbarger. The motion was fully briefed on
December 9, 2019. The court held oral argument on December 10, 2019.
II.

LEGAL STANDARD
RCFC 15(a)(2) states that “a party may amend its pleading only with the opposing

party’s written consent or with the court’s leave” and that “[t]he court should freely give
leave when justice so requires.” In general, the court should only deny leave to amend
where there is evidence of “delay, bad faith, repeated failure to correct . . ., undue
prejudice to the opposing party, or if the amendment would be futile.” Marchena v.
United States, 128 Fed. Cl. 326, 330 (2016), aff’d, 702 F. App’x 988 (Fed. Cir. 2017)
(citing A&D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1158 (Fed. Cir. 2014)); see
Foman v. Davis, 371 U.S. 178, 182 (1962) (giving discretion to the trial court to deny a
motion to amend for reasons “such as undue delay, bad faith . . . futility of amendment,
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etc.”). Where the defendant seeks to amend an answer to raise an additional affirmative
defense, that defense “may nevertheless be raised where the plaintiff was aware of the
argument and indicated his responses to the evidence.” E.L. Hamm & Assocs., Inc. v.
England, 26 F. App’x 936, 937 (Fed. Cir. 2002). “The decision to grant or deny a motion
for leave to amend . . . lies within the sound discretion of the trial court.” Tamerlane, Ltd.
v. United States, 550 F.3d 1135, 1147 (Fed. Cir. 2008) (quoting Insituform Techs., Inc. v.
CAT Contracting, Inc., 385 F.3d 1360, 1372 (Fed. Cir. 2004)).
III.

DISCUSSION
Given the court’s prior order stating that issues associated with Sponenbarger

would be considered in the Phase II trial,4 the court agrees with the government that its
motion to amend its answer is not untimely nor would allowing the amendment be
prejudicial. “Undue prejudice may be found when an amended pleading would cause
unfair surprise to the opposing party, unreasonably broaden the issues, or require
additional discovery.” Cooke v. United States, 79 Fed. Cl. 741, 743-44 (2007). The

4

After the initial filing of the complaint in 2014, the parties submitted a Joint Preliminary Status
Report which listed the relevant benefits doctrine as one of the relevant legal questions for this
case. J. Prelim. Status R. at 5 ¶ 10 (ECF No. 13) (“Whether the government’s operation of the
Missouri River Mainstem system, taken as a whole, confers net benefits upon Plaintiffs’ specific
parcels of property.”). Following the pre-trial conference, the court, relying on language in
Horne v. Dep’t of Agric., 135 S. Ct. 2419, 2434-35 (2015) (Breyer, J. concurring), issued an
order stating “[t]he court will determine the relevance of United States v. Sponenbarger, 308
U.S. 256, 266-67 (1939), if any, if the court is required to determine just compensation after
finding that a taking has occurred.” Oct. 4, 2016 Order at 1 (ECF No. 146). The government then
moved to allow presentation of evidence regarding relative benefits as an element of liability.
Def.’s Mot. to Modify Pre-Trial Order § II.B (ECF No. 154). The court then held a hearing and
determined that “if, in fact, the Plaintiff is able to establish causation and foreseeability, we will
have a second phase of the trial that will deal with the Sponenbarger issue and reasonable
investment-backed expectations. . . .” Tr. of Nov. 2, 2016 Hr’g at 6:23-7:2.
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plaintiffs have had substantial notice that the government will assert a defense based on
relative benefits. Indeed, in the reconsideration decision, the court explicitly stated that it
had reserved the application of Sponenbarger to the facts for Phase II. Ideker Farms, 142
Fed. Cl. at 232-33. Thus, whether the motion to amend should be granted turns on
whether the government’s Sponenbarger defense as presented would be futile.
“An amendment is futile when the proponent of the amendment cannot provide a
colorable argument that the original or the amended claim will not survive a motion to
dismiss.” Northrop Grumman Sys. Corp. v. United States, 137 Fed. Cl. 677, 682 (2018)
(citing Cultor Corp. v. A.E. Staley Mfg. Co., 224 F.3d 1328, 1333 (Fed. Cir. 2000)). To
survive the motion to dismiss standard, the government must have alleged sufficient facts
such that the defense is not “destined to fail.” Hanover Ins. Co. v. United States, 134 Fed.
Cl. 51, 63 (2017).
As discussed above, the government argues that under Sponenbarger and the
relative benefits doctrine it established, the court’s determination of whether there has
been a taking “should consider all benefits from the relevant government actions that
affect the Plaintiffs’ properties.” Def.’s Reply at 9. The government argues that these
include “those arising from the construction, operation, and repair of the dams, BSNP
river-training structures such as dikes and revetments, and hundreds of miles of levees.”
Id. at 10. Indeed, the government contends that this case is easily resolved under the
relative benefits doctrine alone because the intermittent but repeated flooding on a
portion of plaintiffs’ property due to the MRRP is without question “slight” in
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comparison to the enormous benefits the plaintiffs received from the Corps’ construction
and maintenance of the Mainstem System and the BSNP structures which created
plaintiffs’ river-bottom property and for years protected their properties from flooding.
See Tr. of Dec. 10, 2019 Oral Arg. 14:5-10.
The government acknowledges that the court’s Phase I decision “limited the
causation analysis” to a “but for analysis” comparing flooding on plaintiffs’ properties
before and after implementation of the MRRP for each of the years in question. Def.’s
Reply at 13. The government argues, however, that the relative benefits analysis required
by Sponenbarger is distinct from the causation analysis and that under Sponenbarger the
court, in deciding whether the government is liable for a taking based on flooding
associated with a government project, must take into account “all benefits of the relevant
government actions without limitation.” Id; see also Tr. of Dec. 10, 2019 Oral Arg.
47:15-17. Relying on this reading of Sponenbarger, the government argues that the court
must compare the flooding the plaintiffs experienced with the MRRP with the flooding
they would experience without the Mainstem System and the BSNP to find liability for a
taking.
The plaintiffs argue that, having concluded that the “but for” world for purposes of
deciding causation included the Mainstem System together with the BSNP as the
baseline, the court should not apply a different analysis for purposes of determining the
government’s taking liability for that same flooding. According to the plaintiffs, the law
of the case following the reconsideration decision is that the Mainstem System and the
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BSNP fit within the Hardwicke exception identified by the Federal Circuit in St. Bernard
Parish footnote 14 and, in keeping with that exception, the government can be held liable
for a taking with the existing flood protections serving as the baseline if the flood riskincreasing activities were not contemplated at the time the flood protections were put in
place. Pl.’s Sur-Reply at 4 (ECF No. 527) (citing Banks v. United States, 741 F.3d 1268,
1276 (Fed. Cir. 2014)). The plaintiffs also take issue with the government’s reading of
Sponenbarger and argue that the Supreme Court in Sponenbarger accepted the flood
protection levees the government had previously helped to construct as a baseline and
only considered the government’s actions in connection with the precise project at issue
in deciding relative benefits. Pl.’s Opp. at 16.
A.

The Law Of The Case Compares A World With And Without The
MRRP Only

To begin, it is not disputed that the court has already determined that the “but for”
world for deciding whether the government caused the flooding on plaintiffs’ properties
is a “but for” world without the MRRP but with the rest of the Mainstem System and the
BSNP in place. Under the law of the case doctrine, “when a court decides upon a rule of
law, that decision should continue to govern the same issues in subsequent stages in the
same case.” Banks, 741 F.3d at 1276 (quoting Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 815-16 (1988)). The law of the case doctrine “bars retrial of issues
that were previously resolved.” Intergraph Corp. v. Intel Corp., 253 F.3d 695, 697 (Fed.
Cir. 2001). “Although a court may depart from the law of the case doctrine in
‘exceptional cases,’ such departures are rare” and generally require discovery of new and

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material evidence or an intervening change in controlling legal authority. Toro Co. v.
White Consol. Indus., Inc., 383 F.3d 1326, 1336 (Fed. Cir. 2004) (citations omitted).
The court finds that under the law of the case doctrine, the court’s conclusion that
the baseline for determining causation must also apply to deciding the government’s
ultimate liability for a taking. The government’s suggestion that in deciding whether the
government is liable for a taking the court should compare the flooding on plaintiffs’
properties caused by the MRRP with the flooding that would have occurred on plaintiffs’
properties without the Mainstem System and the BSNP is inconsistent with the court’s
reconsideration decision.
The court rejected on reconsideration the government’s contention that under the
Federal Circuit’s opinion in St. Bernard Parish the “but for” world for deciding causation
for a taking by government flooding mandates consideration of all of the benefits
plaintiffs received from the Mainstem System and the BSNP. While the court on
reconsideration acknowledged that the MRRP is related to the Mainstem System and the
BSNP, the court did not find that they must therefore be considered together for purposes
of deciding whether the government’s actions give rise to a taking. To the contrary, as the
court discussed in the reconsideration opinion, St. Bernard Parish leaves open the exact
circumstances of this case where the flooding at issue is caused by government actions
that were plainly not contemplated at the time the original river flood control

15

management systems were designed and constructed. Ideker, 142 Fed. Cl. at 232.5 In
such circumstances, the flood protections previously provided by the government are the
baseline for deciding taking liability.
B.

Sponenbarger And Subsequent Cases From The Federal Circuit Are
Consistent With The Court’s Reconsideration Decision

The court also finds that even if the relative benefits issue had not been resolved in
the court’s reconsideration opinion, the government’s reading of Sponenbarger is too
broad. As plaintiffs persuasively point out, in Sponenbarger the Court in deciding the
government’s taking liability “did not compare the injuries allegedly inflicted by the 10year program in question to the flood-control benefits . . . that had been conferred by
other federal programs that preceded it.” Pl.’s Opp. at 16. In Sponenbarger, an individual
sued the United States for a taking of her land caused by the Mississippi Flood Control
Act of 1928 and actions pursuant to the Act. 308 U.S. at 260. In deciding whether the
government was liable for a taking, the Court did not consider the flood control benefits
that had been conferred on the plaintiff’s land under prior flood control programs paid for

In St. Bernard Parish, the plaintiffs alleged the government’s operation of the Mississippi
River-Gulf Outlet (“MRGO”) channel during the aftermath of Hurricane Katrina resulted in
flooding that would not have occurred had the channel not been constructed. 887 F.3d at 1357.
At the time when construction of the MRGO was concluding, the Lake Pontchartrain and
Vicinity Hurricane Protection (“LPV project”) began construction. Id. at 1358. The Circuit stated
that to show causation, the plaintiffs had to show that their property would be worse in a “but
for” world without both the MRGO and LPV than in the present world with both. Id. at 1365.
The Circuit explained that both must be considered because both were “directed to the same risk
that is alleged to have caused the injury to the plaintiffs.” Id. In St. Bernard Parish, the Circuit
stated that “there is no question that the LPV project was directed to decreasing the very flood
risk that the plaintiffs allege was increased by the MRGO project” and included “levees along
the banks of MRGO.” Id. Indeed, some “construction of the levees used some of the material
dredged from MRGO.” Id. The facts of this case are very different.
5

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by the United States. Specifically, the Court acknowledged that the United States had
helped build protective levees along the banks of the Mississippi River. Id. at 261.
However, in deciding whether the government was liable for a taking based on the
Mississippi Flood Control Act of 1928, the court looked only at the benefits conferred by
that 1928 Act and not any additional flood control benefits conferred on the plaintiff’s
land from the government’s earlier support of an extensive levee system. The Supreme
Court found that “[t]he Government ha[d] not subjected respondent’s land to any
additional flooding, above what would occur if the Government had not acted [in 1928].”
Id. at 266.
Thus, Sponenbarger does not mandate that this court look to every flood control
benefit the government has conferred on a plaintiff in deciding whether there has been a
taking. The Supreme Court acknowledged that there was an existing baseline of
protection and looked only at whether the flooding caused by the 1928 Act was
outweighed by the benefits conferred on plaintiff by that same Act. Here, by analogy, the
court’s inquiry was properly focused on whether the flooding caused by the MRRP is
outweighed by any flood protection benefits conferred on plaintiffs by the MRRP only.
The “but for” world the court used for purposes of determining whether there can
be a taking in this case is also consistent with the “but for” world referenced in the
Federal Circuit’s decision in St. Bernard Parish. In St. Bernard Parish, the Circuit
considered the MRGO and LPV together because both were “directed to the same risk
that is alleged to have caused the injury to the plaintiffs.” 887 F.3d at 1365. There was
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“no question that the LPV project was directed to decreasing the very flood risk that the
plaintiffs allege was increased by the MRGO project” and included “levees along the
banks of MRGO.” Id. Indeed, some “construction of the levees used some of the material
dredged from MRGO.” Id. The Circuit specifically indicated that it was not addressing a
situation where, like here, “the risk-reducing government action preceded the riskincreasing government action.” Id. at 1367 n.14. It is precisely for this situation the
Circuit referenced Hardwicke and the significance the Hardwicke court placed on
considering what was contemplated for determining the appropriate “but for” world
under Sponenbarger. Id. (citing Hardwicke, 467 F.2d at 490-91). As stated in the court’s
reconsideration decision, the circumstances of this case fit squarely within the situation
described above by the Federal Circuit in St. Bernard Parish which referenced
Hardwicke.
In Hardwicke, the court considered whether the Falcon Dam, which decreased the
risk of flooding, constituted a baseline to analyze the effects of the later completed
Anzalduas Dam, a diversion dam which increased the risk of flooding. The court stated
that “a buyer of land . . . knew or should have known that the flood control plan . . .
contemplated the construction of both storage and diversion dams.” 467 F.2d at 490.
Thus, the court held that “the circumstances show sufficient nexus between Falcon and
Anzalduas, sufficient probability that Anzalduas would come into being after Falcon, so
that plaintiffs cannot base a taking claim on the hypothesis that they can garner the
benefit conferred by Falcon, without deduction for the probable detriment when

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Anzalduas comes into being too.” Id. at 491. Here, the court’s “but for” world for
purposes of deciding if there has been a taking is consistent with Hardwicke because it
has determined that the changes made to the Mainstem System and the BSNP by the
MRRP were not contemplated at the time the Mainstem System and the BSNP were
constructed.
The government’s reliance on Bartz v. United States, 633 F.2d 571 (Ct. Cl. 1980),
Ark-Mo Farms, Inc. v. United States, 530 F.2d 1384 (Ct. Cl. 1976), and Laughlin v.
United States, 22 Cl. Ct. 85 (1990) to suggest that Sponenbarger should be read more
broadly to require the court to ignore the Mainstem System and the BSNP as a baseline is
not supported. To begin, the discussions of Sponenbarger in each of these cases was
dicta; in each case the court found that the government had not caused the alleged
flooding.6 Moreover, the facts in the above-cited cases are plainly distinguishable from
the facts in the present case.
In Bartz, the plaintiffs alleged a taking based on the construction and operation of
the Coralville Dam. 633 F.2d at 572-73. The court found that the Coralville Dam was “a
component of the comprehensive flood control plan for the Mississippi Water Basin.” Id.
at 573. Specifically, the plaintiffs argued that the Corps had changed the operating
protocols of the Dam and that change caused a taking. Id. The court rejected the

Ark-Mo Farms, Inc., 530 F.2d at 1386 (holding “[n]o proof was made that Dam No. 2 or any
other consequence of the project was the cause of the floods complained of”); Bartz, 633 F.2d at
577 (holding “[e]xcessive precipitation was the root cause of the flooding experienced by
plaintiffs”); Laughlin, 22 Cl. Ct. at 114 (“Since plaintiff did not prove causation, no detriment to
his property resulted from any act of the Government.”).
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plaintiffs’ argument that the operating protocols had changed to benefit other landowners,
id. at 573-74, and considered the relative benefits with and without the Dam, id. at 575
(“Each of the years . . . was analyzed for the potential of raising a crop, using two
hypotheses: one, regulated flows with Coralville Dam in position, and two, unregulated
flows without Coralville Dam.”). In Bartz, the court only looked at the Dam and not the
entire flood control plan for the Mississippi basin. As such, Bartz is consistent with the
court’s reading of Sponenbarger.
In Ark-Mo Farms, Inc., the plaintiff alleged that the closing “Dam No. 2” caused a
taking. 530 F.2d at 1385. Dam No. 2 was part of the “McClellan-Kerr Arkansas River
Navigation System” with the primary purpose of “the creation of a navigation channel”
but included “a number of flood control structures, all upstream from plaintiff’s farm.”
Id. In conducting the relative benefits analysis the court considered the impact of the
System as a whole. Id. at 1386. Unlike Dam No. 2 and the System in Ark-Mo Farms, Inc.,
the court has determined in this case that, while related, the MRRP was created to address
the Corps’ ESA compliance and it does not have the same purposes as the Mainstem
System or BSNP. It is for this reason that the court turned to the Hardwicke exception.
Finally, in Laughlin, the plaintiff claimed that both the “Bureau’s operation of the
Colorado River as a flood control project” and “the existence and/or operation of the
Topack Marsh” resulted in a taking of the plaintiff’s property by causing high water
elevation. 22 Cl. Ct. at 101. The Topack Marsh itself was created “as an unanticipated
consequence of the river control project.” Id. at 89. Thus, in the relative benefits analysis,
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the court considered benefits arising from structures on the River that were part of the
flood control project (i.e. dams, reservoirs, levees) and the Marsh that plaintiff alleged
caused high groundwater and high-water elevation. Id. at 112. The government argues
that this case is relevant because the court relied on a “but for” world without both the
Marsh and prior flood control projects. Tr. of Dec. 10, 2019 Oral Arg. 18:12-20.
However, this case is, once again, distinguishable from the present case because in
Laughlin the plaintiff alleged a taking by both the Marsh and the river control project.
See Laughlin, 22 Cl. Ct. at 86 (“plaintiff ascribes causation to the system of dams and
reservoirs on the Colorado River and to Topack Marsh, either independently of or in
conjunction with each other.”). Thus, the Laughlin court’s construction of a “but for”
world necessarily had to consider what would happen without the Marsh and structures
that were part of the river control project. Here, in contrast, plaintiffs allege a taking
based only on the MRRP.
By disregarding the fact that the MRRP and its ESA-related purposes were not
contemplated when the Mainstem System and the BSNP were constructed, the
government’s proposed relative benefits test would mean that the government could take
virtually all of plaintiffs’ properties for the benefit of threatened and endangered species
and their habitats without compensation because the plaintiffs’ properties would be
repeatedly flooded and may not even exist in the government’s proposed “but for” world

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without the Mainstem System and the BSNP. The plaintiffs, of course, purchased and
developed their properties because the Mainstem System and the BSNP were in place.7
In this regard, the court finds the government’s concern that this court’s reading of
Sponenbarger will result in government liability for any adjustment of flood-control
benefits in a flood-control project unsupported. See Tr. of Dec. 10, 2019 Oral Arg. 52:2153:9. The projects undertaken by the Corps to reengineer the River for the benefit of
these plaintiffs, among others, has caused environmental impacts that were not
contemplated when the Mainstem System and the BSNP were constructed. The MRRP
requires the Corps to once again reengineer the River, this time for the benefit of
threatened and endangered species. These changes have caused an increase in flood risk
to plaintiffs’ properties that was not contemplated when the Corps took its prior flood
risk-reducing actions. This case does not involve a comparison between different flood
risk-reducing actions by the Corps. While relative benefits derived from related projects
for the same purpose must be considered together, here the purpose of the Corps’ actions
are different and were not contemplated at the time the Mainstem System and the BSNP
were constructed. Thus, neither Sponenbarger nor any other Federal Circuit case
mandates that the MRRP be combined with all the Corps’ actions on the River for
purposes of determining whether there has been a taking by flooding.

The government’s position is particularly at odds with the fact that the Corps has been allocated
funds and authority to purchase land from willing sellers “to be converted to habitat for native
Missouri River species.” Ideker, 136 Fed. Cl. at 665.
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Therefore, the government’s motion to amend its answer to seek a defense to
taking liability based on a relative benefits test that compares plaintiffs’ flood risks with
and without the Mainstem System and the BSNP is DENIED. As a matter of law this
defense would be futile. However, as discussed above, to the extent the government has
new evidence to show that the Corps has implemented measures to reduce flood risks that
occurred after 2014 to address MRRP flooding risk, they may be presented in Phase II.
As set forth in the court’s December 10, 2020 Order (ECF No. 531), the next step in this
litigation is the parties’ submission of a joint status report, to be filed on February 27,
2020, after the close of fact discovery on February 24, 2020.
IT IS SO ORDERED.

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

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