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

                                             )
 IDEKER FARMS, INC., et al.,                 )      Motion to Amend Answer, RCFC 15;
                                             )      Taking; Fifth Amendment; Affirmative
                      Plaintiffs,            )      Defense; Sponenbarger; Relative
                                             )      Benefits; Futility; Flooding
 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 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, 

(2018), and in the decision on reconsideration, Ideker Farms, Inc. v. United States, 

(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




1
 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 

.
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, 

(1939). Def.’s Mot., Attach. 4 (ECF No. 513-4). In

, 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


                                              3
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




                                               4
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

                                              5
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 

. 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”). 

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.” 

The Corps also
                                                6
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 

; 

Ideker 

.

       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 

.




constructed shallow water habitat and emergent sandbar habitat for threatened and endangered
species. 

see 

(explaining that shallow water habitat is made by “notching
dikes and revetments, allowing the same to deteriorate, dredging chutes, and creating backwaters
and chevrons”).


                                               7
       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. 

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.” 

In this

connection, the court found that “[s]eepage and blocked drainage claims . . . are all tied to

higher [water surface elevations].” 

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. 

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. 

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. 

The court found an

additional 14 plaintiffs had established that the Corps’ MRRP activities were the


                                             8
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. 

see Ark. Game & Fish

Comm’n v. United States, 

, 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, 

(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 

.

       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


                                              9
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 

n.14 (citing John B. Hardwicke Co. v. United

States, 

, 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 

-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, 

, 330 (2016), aff’d, 702 F. App’x 988 (Fed. Cir. 2017)

(citing A&D Auto Sales, Inc. v. United States, 

, 1158 (Fed. Cir. 2014)); see

Foman v. Davis, 

, 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,
                                              10
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, 

, 1147 (Fed. Cir. 2008) (quoting Insituform Techs., Inc. v.

CAT Contracting, Inc., 

, 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, 

, 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., 

, 2434-35 (2015) (Breyer, J. concurring), issued an
order stating “[t]he court will determine the relevance of United States v. Sponenbarger, 

, 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.


                                                 11
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 

. 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, 

, 682 (2018)

(citing Cultor Corp. v. A.E. Staley Mfg. Co., 

, 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.”

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


                                              12
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


                                               13
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 risk-

increasing 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, 

,

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.” 

(quoting Christianson v. Colt Indus. Operating

Corp., 

, 815-16 (1988)). The law of the case doctrine “bars retrial of issues

that were previously resolved.” Intergraph Corp. v. Intel Corp., 

, 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


                                              14
material evidence or an intervening change in controlling legal authority. Toro Co. v.

White Consol. Indus., Inc., 

, 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. 

.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 10-

year 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 

. 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



5
  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 

.
At the time when construction of the MRGO was concluding, the Lake Pontchartrain and
Vicinity Hurricane Protection (“LPV project”) began construction. 

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. 

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.” 

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.” 

“construction of the levees used some of the material
dredged from MRGO.” 

of this case are very different.
                                                16
by the United States. Specifically, the Court acknowledged that the United States had

helped build protective levees along the banks of the Mississippi River. 

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].”

       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 

. There was


                                             17
“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.” 

“construction of the levees used some of the material

dredged from MRGO.” 

specifically indicated that it was not addressing a

situation where, like here, “the risk-reducing government action preceded the risk-

increasing government action.” 

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. 

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 

.

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


                                             18
Anzalduas comes into being too.” 

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, 

(Ct. Cl. 1980),

Ark-Mo Farms, Inc. v. United States, 

(Ct. Cl. 1976), and Laughlin v.

United States, 

(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 

. The court found that the Coralville Dam was “a

component of the comprehensive flood control plan for the Mississippi Water Basin.” 

Specifically, the plaintiffs argued that the Corps had changed the operating

protocols of the Dam and that change caused a taking. 

rejected the


6
 Ark-Mo Farms, 

(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”); 

(holding “[e]xcessive precipitation was the root cause of the flooding experienced by
plaintiffs”); 

(“Since plaintiff did not prove causation, no detriment to
his property resulted from any act of the Government.”).
                                                 19
plaintiffs’ argument that the operating protocols had changed to benefit other landowners,

and considered the relative benefits with and without the Dam, 

(“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

. 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.”

the relative benefits analysis the court considered the impact of the

System as a whole. 

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

. The Topack Marsh itself was created “as an unanticipated

consequence of the river control project.” 

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. 

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 

(“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. 52:21-

53:9. 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.




7
  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.” 

.
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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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