Big Oak Farms, Inc. v. United States

105 Fed. Cl. 48, 2012 U.S. Claims LEXIS 460, 2012 WL 1570878
CourtUnited States Court of Federal Claims
DecidedMay 4, 2012
DocketNo. 11-275L
StatusPublished
Cited by9 cases

This text of 105 Fed. Cl. 48 (Big Oak Farms, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Big Oak Farms, Inc. v. United States, 105 Fed. Cl. 48, 2012 U.S. Claims LEXIS 460, 2012 WL 1570878 (uscfc 2012).

Opinion

OPINION

FIRESTONE, Judge.

On July 11, 2011, plaintiffs, landowners in Mississippi County, Missouri who own land located in the Birds PoinUNew Madrid Floodway, filed an Amended Complaint, alleging that defendant the United States (“the government”) took them property without just compensation in violation of the Fifth Amendment of the United States Constitution. Plaintiffs allege that the government took their property when the Army Corps of Engineers activated the Birds Point-New Madrid Floodway on May 2, 2011 by breaching the levee that protected plaintiffs’ property with explosives, unleashing a flood that caused damage to plaintiffs’ land, crops, equipment, and infrastructure, as well as leaving behind sand and gravel deposits that subject plaintiffs’ property to flooding during low-level rainstorms. Plaintiffs also allege that the United States failed to provide compensation for the sand and gravel deposits left by the May 2, 2011 flooding event as required by the flowage easements the government previously acquired across some of plaintiffs’ properties. Pending before the court is the government’s motion to dismiss plaintiffs’ Fifth Amendment takings claims.1

I. Background

The following facts are taken from plaintiffs’ Amended Complaint unless otherwise noted. Plaintiffs own property within the Birds Point-New Madrid Floodway (“Flood-way”), located in Mississippi County, Missouri. The Floodway is a component of the Mississippi River and Tributaries Project (“Project”) located on the west bank of the Mississippi River. The Project was authorized by the Flood Control Act of 1928, 33 U.S.C. § 702 et seq., in response to unprecedented flooding of the Mississippi River. The Project’s levee system protects properties in the Floodway during smaller Mississippi River floods, but the Project authorizes use of the Floodway when it is necessary to protect the upstream town of Cairo, Illinois.

The Floodway comprises approximately 130,000 acres largely devoted to farmland. It is bound by a 56 mile long “frontline” levee on the east, next to the Mississippi River, and a 36 mile long “setback” levee on the west. The frontline levee pre-existed the construction of the Floodway. As originally developed by the Army Corps of Engineers (“the Corps”), the Floodway was created under a plan known as the “Jadwin Plan” by [51]*51building the setback levee between three and ten miles west of the preexisting frontline levee, and degrading and lowering portions of the frontline levee to correspond with a flood stage of fifty-five feet on the Cairo, Illinois gauge. The degraded sections of the frontline levee are known as the upper and lower “fuse plug.” Under the Jadwin Plan, when the waters of the Mississippi River reached fifty-five feet on the Cairo gauge, the water would flow over the fuse plug sections of the frontline levee, thereby activating the Floodway, and averting flooding further upstream.

Under the Flood Control Act of 1928, which adopted the Jadwin Plan, Congress authorized the federal government to compensate landowners who would be subjected to “additional destructive flood waters that will pass by reason of diversions” from the Mississippi because of the degradation of the pre-existing levee system. 33 U.S.C. § 702d. Pursuant to this mandate, the federal government acquired flowage easements over approximately eighty percent of the Flood-way. Under the terms of the 1928 Act, the government is immunized from liability arising from damages associated with operation of the Floodway. The 1928 Act provides in relevant part that “[n]o liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place.” 33 U.S.C. § 702c.

The Floodway was operated for the first time in 1937. Because the upper fuse plug area had not yet been degraded, the Corps breached the upper fuse plug area with dynamite, sending floodwaters into the Floodway.

Congress authorized modification of the Floodway plan in the Flood Control Act of 1965. The new plan developed by the Corps allowed artificial erevassing by explosive detonation at the fuse plug section of the front-line levee. Pursuant to the 1965 Act, the Corps also raised the frontline levee to provide protection to sixty feet as measured on the Cairo gauge, but is authorized to artificially breach the frontline levee at a stage of fifty-eight feet if a flood higher than sixty feet is forecast.2 In conjunction with the new plan, the federal government acquired modified flowage easements over a portion of the Floodway between 1968 and 1974. These modified flowage easements specified that the United States was condemning an “easement to flood and inundate” the Floodway lands “by diversion of flood waters of the Mississippi River and its tributaries in the operation of the Birds Point-New Madrid Floodway, said floodway to be placed in operation by artificial breaching or erevassing of any part or parts of the fuse plug sections of the frontline levee, between [certain fuse plug levee stations].” Am. Compl. ¶ 43. The easements also reserved to the landowners all rights and privileges to use and enjoy the land so long as the rights provided by the easements were not interfered with or abridged, and “to compensation as may become due by reason of excessive deposits of sand and gravel upon the lands ... as a direct result of the planned operation of the floodway[.]” Id. ¶ 44.

The Corps revised the Floodway’s operation plan again in 1983 (“1983 plan”), allowing for artificial erevassing by explosion in additional locations along the upper fuse plug and the lower fuse plug. The 1983 plan also authorized artificial erevassing at one point along the midseetion of the frontline levee. According to plaintiffs, the federal government and the Corps did not obtain the necessary flowage easements to allow for execution of the 1983 plan.

On May 2, 2011, when the flood waters reached a stage of fifty-eight feet on the Cairo gauge with a predicted stage in excess [52]*52of sixty feet, the Corps, in accordance with the current operation plan, artificially breached the frontline levee and for the first time since 1937 activated the Floodway. The frontline levee was breached in multiple locations in accordance with the current operation plan. In the aftermath of the breaches, deep sand and gravel deposits were left on plaintiffs’ farmland. Plaintiffs allege that these deposits filled drainage ditches, and now cause intermittent and recurring flooding from low-level rain, storm, and other events that would not have otherwise occurred. Plaintiffs further allege that the value of plaintiffs’ properties has been diminished, plaintiffs’ crops and faim equipment have been destroyed, and infrastructure in the Floodway has been destroyed.

In Count I of their Amended Complaint, plaintiffs allege that the government’s operation of the Floodway on May 2, 2011 exceeded the scope of the flowage easements — to the extent they were acquired — on plaintiffs’ land, and destroyed and devalued plaintiffs’ property so as to effect a compensable taking under the Fifth Amendment of the Constitution of the United States.

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105 Fed. Cl. 48, 2012 U.S. Claims LEXIS 460, 2012 WL 1570878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/big-oak-farms-inc-v-united-states-uscfc-2012.