IDEKER FARMS, INC., et al v. USA

Filing 764

OPINION AND ORDER: Defendant's request to terminate the subclass of plaintiffs whose Fifth Amendment takings claims are based upon fewer than three flood events or otherwise dismiss their claims (ECF 751 ) is DENIED. Signed by Judge Armando O. Bonilla. (ead) Service on parties made.

In the United States Court of Federal Claims
FOR PUBLICATION
No. 14-183L
(Filed: November 25, 2024)
IDEKER FARMS, INC., et al.,
Plaintiffs,
v.
UNITED STATES,
Defendant.

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Seth C. Wright, Polsinelli PC, Kansas City, MO, for plaintiffs. With him on the briefs
were David K. Schultz (argued) and E. Benton Keatley, Polsinelli PC, Kansas City,
MO, and Benjamin D. Brown and Alexander J. Noronha, Cohen Milstein Sellers &
Toll PLLC, Washington, DC.
Mark A. Pacella (argued), Trial Attorney, Natural Resources Section, Environmental
and Natural Resources Division, U.S. Department of Justice, Washington, DC, for
defendant. With him on the briefs were Todd Kim, Assistant Attorney General, and
Tara M. Lewis, Ashley M. Carter, Sarah Ruckriegle, and Tyler M. Alexander,
Trial Attorneys, Natural Resources Section, Environmental and Natural Resources
Division, U.S. Department of Justice, Washington, DC.
OPINION AND ORDER1
BONILLA, Judge.
Nearly four hundred landowners, business owners, and farmers in six states
along the Missouri River allege the U.S. Army Corps of Engineers (Corps)

1 This case was transferred to the undersigned for adjudication on October 3, 2022, pursuant to
Rule 40.1(b) of the Rules of the United States Court of Federal Claims (RCFC). At that time, and
continuing through December 6, 2023, the matter was pending before the United States Court of
Appeals for the Federal Circuit on cross-appeals of interlocutory liability and damages issues. See
Ideker Farms, Inc. v. United States, 71 F.4th 964 (Fed. Cir. 2023), reh’g en banc denied (Nov. 29, 2023)
(per curiam); ECF 710 (mandate issued on December 6, 2023).

intentionally contributed to and directly caused atypical flooding of their properties.
Plaintiffs contend the destructive floods flowed from official policy changes
implemented by the Corps beginning in 2004, deprioritizing flood control and land
and economic development in the region in favor of returning the river to a more
natural state to protect wildlife and preserve the environment. Certain plaintiffs
claim near-annual flooding beginning in 2007, which has devastated their land,
damaged permanent and temporary fixtures, and destroyed crops and miscellaneous
personal property. Others base their claims on one or two—but not yet three—flood
events over the last twenty years.2 Nevertheless, all plaintiffs claim the Corps’
actions resulted in a permanent flowage easement across their land, effecting a
taking of their real and personal property without just compensation in violation of
the Fifth Amendment to the United States Constitution.
Pending before the Court is defendant’s motion for judgment on the pleadings
pursuant to RCFC 12(c). Specifically, defendant seeks to summarily terminate all
plaintiffs whose takings claims are based upon less than three floods, asserting that
such actions are tortious trespasses falling outside this Court’s statutorily prescribed
jurisdiction. See 28 U.S.C. § 1491(a)(1) (“The United States Court of Federal Claims
shall have jurisdiction to render judgment upon any claim against the United States
founded either upon the Constitution, or any Act of Congress or any regulation of an
executive department . . . in cases not sounding in tort.”) (emphasis added). The
Court rejects defendant’s oversimplification of the law in this complex area and
concomitant effort to establish a bright-line rule of jurisdictional expediency at the
expense of potentially viable Fifth Amendment claims. Put another way, the Court
does not subscribe to the government’s proverbial approach: Once is an accident.
Twice is a coincidence. Thrice might be a pattern.
BACKGROUND3
Early on in this litigation, the Court selected forty-four representative
plaintiffs to examine issues of liability.4 Ideker Farms I, 136 Fed. Cl. at 659. After
hearing from the bellwether plaintiffs and the parties’ other fact and expert witnesses
2 To date, counsel identified thirty-five plaintiffs whose claims in this action are based upon fewer than
three flood events occurring in or after 2004. ECF 731. The Court understands this number may
eventually exceed 200 based on the allegations in the 2020 second amended complaint and
representations of counsel.
3 The background facts and procedural history are detailed in the Court’s prior decisions in this case.

Ideker Farms, Inc. v. United States, 136 Fed. Cl. 654, 660–72 (2018) (Ideker Farms I), reconsideration
denied, 142 Fed. Cl. 222 (2019) (Ideker Farms II); Ideker Farms, Inc. v. United States, 146 Fed. Cl. 413,
414–17 (2020) (Ideker Farms III); Ideker Farms, Inc. v. United States, 151 Fed. Cl. 560, 566–683 (2020)
(Ideker Farms IV). They are also summarized in the Federal Circuit’s interlocutory decision. Ideker
Farms, 71 F.4th at 970–74. Those material to this decision are restated herein.
4 For clarity, in certain cases a tract of land is jointly owned by multiple individuals or entities. The
number of “plaintiffs” used herein more aptly refers to the number of properties.

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during the Phase I trial, the Court concluded that fourteen plaintiffs demonstrated
the requisite causation, foreseeability, and severity to effect a cognizable
Fifth Amendment takings claim in the form of a permanent flowage easement.5
Ideker Farms I, 136 Fed. Cl. at 659–60, 761–62. Accordingly, these plaintiffs would
proceed to Phase II, where the government’s affirmative defenses would be tested and
issues of entitlement and just compensation would be explored. Id. at 660. Relevant
here, each of the fourteen plaintiffs headed to Phase II were found to have suffered
three or more flood events between 2007 and 2014 attributable to the Corps’ 2004
policy changes (Property Nos. 13, 15–18, 20, 25, 27, 29–30, 33, 39, 41, 44).6 Id. at
725–34, 738–45, 747–49, 755–58, 760–61.7
The Court further concluded that an additional fourteen plaintiffs established
causation and foreseeability but had not yet demonstrated the requisite severity. Id.
at 762. Twelve of these fourteen plaintiffs were found to have suffered two flood
events attributable to the Corps’ 2004 policy changes (Property Nos. 19, 21–24, 26,
28, 31–32, 38, 40, 43); the other two plaintiffs in this group demonstrated one
attributable flood event (Property Nos. 35 and 42). Id. at 732–43, 745–47, 750–52,
754–60. Although approved to move forward in this litigation, the pressing issue of
inevitable recurrence remains for this group of plaintiffs. See Ideker Farms, 71 F.4th
at 980 n.8.
Finally, the Court dismissed the claims of the remaining sixteen plaintiffs for
failure to establish causation. Ideker Farms I, 136 Fed. Cl. at 762–63. All but four of
these plaintiffs based their takings claim solely on a 2011 flood event (Property Nos.
1–10, 12, 14), which the Court determined was not sufficiently attributable to the
Corps’ 2004 policy changes.8 Id. at 721–24, 725, 726–27. The balance unpersuasively
cited two or three floods including the discounted 2011 event (Property Nos. 11, 34,
5 On appeal, the Federal Circuit concluded that this Court erred in applying the temporary flooding

multi-factor test articulated in Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23 (2012),
in reaching this result. Ideker Farms, 71 F.4th at 978–81. However, reevaluation is not necessary in
light of the ultimate conclusions reached: a claimed categorical physical taking of plaintiffs’ property
by the federal government in the form of a permanent flowage easement.
6 For clarity, the Court uses the property numbers assigned in the original opinion.
7 Following a Phase II trial focused on three representative properties within this group (Property Nos.

17, 33, 41), the Court entered judgment in the aggregate amount of approximately $8 million plus
interest (i.e., over $7 million in just compensation for the three flowage easements and an additional
$1 million for levee repairs). See Ideker Farms IV, 151 Fed. Cl. at 560, 566–610; ECF 699. On appeal,
as further explained infra, the Federal Circuit affirmed this Court’s ultimate liability determination
and did not disturb the $8 million judgment. Ideker Farms, 71 F.4th at 974–86. However, the
appellate court vacated this Court’s blanket determinations that claims related to crop losses and
attributed to 2011 flooding were not compensable and remanded those issues for further evaluation.
Id. at 986–90.
8 Specifically, the Court found that the 2011 flood was not the result of any “single purpose” of the
Corps to comply with the 2004 Master Manual and that the plaintiffs could not meet the causation or
foreseeability requirements for that flood. Ideker Farms I, 136 Fed. Cl. at 691–94.

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36–37). Id. at 724–25, 749–50, 751–53. On appeal, the Federal Circuit vacated and
remanded this Court’s findings and conclusions related to the 2011 flooding,
effectively reinstating the claims of this final group of plaintiffs as well as the claims
of all plaintiffs insofar as they relate to the 2011 flooding event.9
DISCUSSION
For more than a century, the United States Supreme Court has held that
recurring flooding on private property flowing from federal government policies and
engineering and construction projects effects a flowage easement. When permanent,
the government actions effect a Fifth Amendment taking of private property for the
public good, for which just compensation is ordinarily due:
“Where the government by the construction of a dam or other public
works so floods lands belonging to an individual as to substantially
destroy their value, there is a taking within the scope of the
5th Amendment.” . . . There is no difference of kind, but only of degree,
between a permanent condition of continual overflow by backwater and
a permanent liability to intermittent but inevitably recurring overflows;
and, on principle, the right to compensation must arise in the one case
as in the other.
United States v. Cress, 243 U.S. 316, 328 (1917) (quoting United States v. Lynah,
188 U.S. 445, 470 (1903), overruled in part on other grounds by United States v.
Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 312 U.S. 592, 598 (1941)). In
deciding this motion, the Court assumes the policies of the Missouri River Recovery
Program are permanent and that plaintiffs’ flooding can be attributed to government
action. Accordingly, the sole issue the Court must resolve today is whether the
subclass of plaintiffs whose Fifth Amendment takings claims are based on fewer than
three flood events over the last two decades have plausibly alleged “inevitably
recurring” flooding on their property.
In determining whether government-caused flooding will inevitably recur,
historical flood events, while certainly a data point to consider, are not dispositive.
Black’s Law Dictionary defines “inevitable” as “Certain to occur; impossible to
prevent or avoid <an inevitable consequence>.” Black’s Law Dictionary 925 (12th ed.
2024). Thus, the Court must look not only to past events, but toward the future,
to determine whether the actions of the Corps will inevitably inundate a particular
plaintiff’s property with flood waters and, thus, establish a permanent flowage
easement. Contrary to defendant’s assertion, the number of government-induced
flood events a property owner experienced as of the filing of their complaint does not
9 This Court’s specific rejection of additional flood events originally claimed by this subgroup of
bellwether plaintiffs was not disturbed by the Federal Circuit on appeal.

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axiomatically determine the viability of their Fifth Amendment claim. See Arkansas
Game & Fish Comm’n v. United States, 568 U.S. 23, 31 (2012) (Arkansas Game &
Fish II) (“We have recognized . . . that no magic formula enables a court to judge, in
every case, whether a given government interference with property is a taking.”).10
On this issue, the ultimate question is not the number of floods to date, but rather
whether the government has taken a permanent right of access to the land.
Quebedeaux v. United States, 112 Fed. Cl. 317, 324 (2013) (“Counting floods is not the
controlling consideration. The question, rather, is whether defendant has
appropriated an interest for itself in the subject property—and that inquiry requires
an examination of multiple factors, certainly beyond whether actual flooding has
occurred once, twice, or even a dozen times.”); see Ideker Farms, 71 F.4th at 980
(“Where the government takes a permanent right of access, akin to an easement in
gross, even if used only intermittently, it is unquestionably an appropriation of the
owner’s right to exclude.”). The Court does not adopt defendant’s proposed reading
of “inevitably recurring” as requiring recurrence at the time of the complaint rather
than in the future. So long as there has been one such flood event and future flooding
attributable to government action is certain to recur, a claimant is entitled to pursue
their claim. The Court declines defendant’s invitation to summarily dismiss takings
claims based upon historical flood counting without permitting plaintiffs to prove that
government-induced flood waters will inevitably return.
The cases cited by defendant in seeking dismissal reinforce the decision
reached today. In Cedar Point Nursery v. Hassid, for example, the Supreme Court
explained: “Isolated physical invasions, not undertaken pursuant to a granted right
of access, are properly assessed as individual torts rather than appropriations of a
property right.” 594 U.S. 139, 159 (2021) (emphasis added). The emphasized clause
exempts the permanent flowage easements claimed by plaintiffs in this case from the
tort arena. See Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327,
329–30 (1922) (“But even when the [government’s] intent thus to make use of the
claimants’ property is not admitted, while a single act may not be enough, a
continuance of them in sufficient number and for a sufficient time may prove it. Every
successive trespass adds to the force of the evidence. . . . The fact that the evidence
was not sufficient [when the claim was filed] does not show that it may not be
sufficient [today].”) (emphasis added), quoted in Cedar Point, 594 U.S. at 159.
Defendant’s reliance upon cherry-picked lines from the Federal Circuit’s
decision in this case is similarly misplaced. Distinguishing the permanent flowage
easement claimed in this case from potential tort claims, the Federal Circuit
explained:

10 Mindful of the Federal Circuit’s ruling that “Arkansas Game & Fish II'’s multi-factor test does not
apply to permanently recurring flooding[,]” Ideker Farms, 71 F.4th at 981, the quote above refers to
the Supreme Court’s general approach to Fifth Amendment takings claims.

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[W]hile not rigid, the trespass-versus-taking inquiry focuses on whether
government actions are “[i]solated physical invasions, not undertaken
pursuant to a granted right of access, [which] are properly assessed as
individual torts rather than appropriations of a property right.” Cedar
Point, 594 U.S. at 159. For example, up to three flooding events
“by themselves” do not qualify as (even a temporary) taking. Nat’l
By-Prod., Inc. v. United States, 405 F.2d 1256, 1273 (Ct. Cl. 1969)
(collecting cases); see Ridge Line, Inc. v. United States, 346 F.3d 1346,
1357 (Fed. Cir. 2003) (“[I]solated invasions, such as one or two floodings
. . . do not make a taking . . . but repeated invasions of the same type
have often been held to result in an involuntary servitude.” (quoting
Eyherabide v. United States, 345 F.2d 565, 569 (Ct. Cl. 1965))); see also
Cary v. United States, 552 F.3d 1373, 1381 (Fed. Cir. 2009) (collecting
cases distinguishing permanent and intermittent flooding from isolated
incidents). In sum, this inquiry essentially distinguishes a physical
appropriation from an “occupancy that is transient and relatively
inconsequential,” such as a “truckdriver parking on someone’s vacant
land to eat lunch.” Hendler v. United States, 952 F.2d 1364, 1377
(Fed. Cir. 1991).
Ideker Farms, 71 F.4th at 980–81 (certain internal citations modified). Each example
of tort-based isolated or limited (quantified) flooding events is readily distinguished
from the allegation presented in this case: a permanent (albeit intermittent) flowage
easement taken by the Corps in implementing the Missouri River Recovery Program.
See, e.g., In re Upstream Addicks & Barker (Tex.) Flood-Control Reservoirs,
146 Fed. Cl. 219, 250 (2019) (“[E]ven a single flooding event may give rise to a taking
where the defendant uses a permanent structure to “purposely flood[] a property once
and expressly reserves the right to do so in the future.” (quoting Quebedeaux,
112 Fed. Cl. at 323)), appeal pending sub nom. Ablan v. United States, No. 23-1363
(Fed. Cir.) (docketed Jan. 10, 2023); but see Fromme v. United States, 412 F.2d 1192,
1196–97 (Ct. Cl. 1969) (intervening flooding of private property during government
construction of channel and dam did not effect a Fifth Amendment taking due to its
temporary nature; post-construction flooding estimated to recur every fifteen years
did not satisfy the frequency requirement).11

The Fromme court’s recitation of precedent stating “that one flooding or two floodings of land
attributed to the construction of nearby works by the Government cannot be regarded as a taking of a
permanent interest in the affected land[,]” 412 F.2d at 1196 (citations omitted), is undermined by the
fact that the cited cases say that proving inevitable recurrence in the future is essential to takings
claims with only one or two floods. See N. Ctys. Hydro-Elec Co. v. United States, 151 F. Supp. 322, 323
(Ct. Cl. 1957) (“In this action it is necessary for [plaintiff] to prove . . . that the . . . dam caused the ice
jams and the consequent floodings, and that such floodings will inevitably recur.”) (emphasis added),
cited in B Amusement Co. v. United States, 180 F. Supp. 386, 389 (Ct. Cl. 1960) (“One flooding does not
constitute a taking and the plaintiffs have failed to show by their evidence that the flooding which
occurred in 1949 will inevitably recur. This fact is essential to prove a taking.”) (emphasis added).
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At this juncture, without affording plaintiffs the opportunity to demonstrate
that government-induced flood waters will inevitably return to their land, the Court
cannot summarily dismiss plaintiffs’ takings claims for not occurring enough times
as of the date they filed suit, or even today. Fifth Amendment takings jurisprudence
is multifaceted and, as here, requires fact-intensive considerations that do not lend
themselves to the bright-line “three floods minimum” advocated by defendant. See,
e.g., Quebedeaux v. United States, 112 Fed. Cl. at 325 & n.12 (denying motion to
dismiss takings claim based upon “a single recent flooding event” to afford plaintiff
the opportunity to demonstrate the government effected a permanent flowage
easement), quoted in Orr v. United States, 145 Fed. Cl. 140, 157–58 (2019) (similar).
Consider the situation where the government constructs a project with the clear
intent of regularly flooding adjacent private property in perpetuity. The effected
landowners should not have to wait for their land to flood three (or more) times before
filing suit seeking just compensation for the permanent flowage easement.12
To be clear, nothing in this opinion should be interpreted or otherwise
construed as finding that any plaintiff currently claiming one or two flood events has
made the requisite showing or otherwise carried their burden of demonstrating that
the Corps has taken a permanent flowage easement across their land entitling them
to just compensation. To establish liability and move on to the damages phase of this
litigation, each plaintiff must present preponderant evidence that the Missouri River
Recovery Program caused increased flood waters to flow onto their land and that
flooding attributable to the Corps’ actions will inevitably recur with sufficient
frequency in the future. That is precisely what the Federal Circuit directed this Court
to do on remand. See Ideker Farms, 71 F.4th at 980 n.8 (“To the extent stayed
Plaintiffs’ [sic] have not established that flooding will be permanently recurring, the
trial court shall determine that where necessary on remand.”).

Moreover, this flood-counting line of cases were overruled by the Supreme Court’s temporary taking
decision in Arkansas Game & Fish II and its progeny.
12 Finally, the government claims the state law of prescriptive easements suggests that one or two
floods is not enough to acquire an easement because the states where plaintiffs’ property is located
require at least ten years of adverse use before the acquisition of an easement by prescription.
However, the question of what constitutes a Fifth Amendment taking is governed by federal law.
Banks v. United States, 71 Fed. Cl. 501, 509 (2006) (“To the extent that plaintiffs’ questions require
construction of the Takings Clause of the United States Constitution, plaintiffs’ questions are also
governed by federal law.”) (citing Johnson v. United States, 479 F.2d 1383, 1390 (Ct. Cl. 1973)); see
Bartz v. United States, 633 F.2d 571, 577 (Ct. Cl. 1980) (“The court in Johnson[] held that the issue of
what constitutes a ‘taking’ is a ‘federal question’ governed entirely by federal law, but that the meaning
of ‘property’ as used by the Fifth Amendment will normally obtain its content by reference to state
law.”) (quoting 479 F.2d at 1390).

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CONCLUSION
For the foregoing reasons, defendant’s request to terminate the subclass of
plaintiffs whose Fifth Amendment takings claims are based upon fewer than three
flood events or otherwise dismiss their claims (ECF 751) is DENIED.
It is so ORDERED.
___________________
Armando O. Bonilla
Judge

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