George Family Trust ex rel. George v. United States

97 Fed. Cl. 625, 2011 U.S. Claims LEXIS 59, 2011 WL 475001
CourtUnited States Court of Federal Claims
DecidedFebruary 8, 2011
DocketNo. 07-816L
StatusPublished
Cited by2 cases

This text of 97 Fed. Cl. 625 (George Family Trust ex rel. George 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
George Family Trust ex rel. George v. United States, 97 Fed. Cl. 625, 2011 U.S. Claims LEXIS 59, 2011 WL 475001 (uscfc 2011).

Opinion

MEMORANDUM OPINION AND ORDER

CHRISTINE O.C. MILLER, Judge.

Before the court is defendant’s motion for summary judgment on the remaining takings claim of plaintiff, The George Family Trust (“plaintiff,” or the “George Trust”).1 The George Trust owns water-damaged riparian properties on tributaries to the White River in Arkansas. Plaintiff alleges that, beginning in and following 2003, recurring flooding during the crop planting season of April through May, caused by the operation of upstream dams by the United States Army Corps of Engineers (the “Corps”), damaged the George Trust’s crop-land and thereby constituted a taking that warrants just compensation under the Fifth Amendment to the U.S. Constitution. Defendant moves for summary judgment pursuant to RCFC 56(c) for failure to make a prima facie showing of causation. The parties declined argument.

BACKGROUND

The court’s prior opinion in this matter, George Family Trust ex rel. George v. United States, 91 Fed.Cl. 177 (2009) (order granting motion to dismiss for lack of subject matter jurisdiction on claims for taking of timber and denying motion with respect to George Trust’s crop-land), detailed the factual background of this case. See George Family Trust, 91 Fed.Cl. at 181-89. Accordingly, the court incorporates by reference the undisputed background facts set forth therein and adds only those additional facts relevant to adjudicate the pending motion for summary judgment.

The George Trust is a riparian landowner whose properties border Prairie Cypress Creek, located in Monroe County, Arkansas, approximately three miles upstream from where Prairie Cypress Creek flows into Big Creek, a tributary of the White River. Prairie Cypress Creek and Big Creek meet approximately 5.5 miles upstream from the confluence of Big Creek and the White River. The Little Rock Arkansas Corps operates a series of dam-and-reservoir projects on the White River and its tributaries, located approximately 134 to 560 miles upstream from where Big Creek flows into the White River (the “Corps Projects”).2 The Corps’s activities along the White River include operating a series of gauges that measure the elevation (or “stage”) of the river’s flow. See Declaration of H. Henry Himstedt, Aug. 27, 2010, ¶3. The St. Charles Gauge is the closest upstream gauge to the George Trust’s properties, located on the White River approximately eight miles upstream from its confluence with Big Creek, and is operated by the Memphis District, Corps of Engineers. The St. Charles Gauge calculates the total flow of the White River, “including both flow attributable to natural run-off from rain falling downstream of [the] Corpses] dams and flow, if any, attributable to the Corpses] releases from its dams further upstream on the White River.” Himstedt Deck ¶3. Gauge records documenting the river flow are available beginning in June 1932. Id.

The George Trust and The Elizabeth Stone Trust (the “Stone Trust”) filed separate complaints in the United States Court of Federal Claims on November 26, 2007, alleging that the Corps Projects in the White River resulted in a taking by innundation of their timber. The cases were consolidated on March 20, 2008. On December 22, 2008, the George Trust amended its complaint, adding a claim for a taking of its crop-land. Plaintiff alleges that the Corps Projects caused flooding of the George Trust’s cropland, thereby effecting a taking of its properties. See Am. Compl. filed Dec. 22, 2008, ¶¶ 7-10. Plaintiff claims that its properties, “over a period of time[,] [have] been subjected to gradual, periodic and intermittent flooding from backwater from Big Cypress Creek,” id. ¶ 7, that has rendered “some 65 [627]*627acres of Plaintiffs land unusable as erop-lands[,] denying Plaintiff of [the lands’] economic viable use,” id. ¶ 9. The George Trust’s losses are a “direct and proximate result of the gradual, periodic and intermittent flooding caused by the Defendant through the U.S. Corp[s] of Engineers’ use of flood control devices and procedures on the Arkansas River System.” Id. ¶ 10.

Defendant moved to dismiss the Stone Trust’s complaint and the George Trust’s amended complaint as time-barred under 28 U.S.C. § 2501 (2006). George Family Trust, 91 Fed.Cl. at 189. Defendant also argued that the George Trust’s crop-land claim had no merit, which the court treated as a motion to dismiss for failure to state a claim upon which relief can be granted. See id. The court granted defendant’s motion with respect to both plaintiffs’ timber claims, see id. at 196, but held that the George Trust’s claim alleging flooding of its crop-land, beginning in and following 2003, was timely, id. at 200. The court also ruled that the George Trust’s crop-land claim alleged a taking sufficient to withstand defendant’s RCFC 12(b)(6) motion. Id. at 203 (explaining that “[Jeff] George has described [through his affidavit] an unforeseen change in periodic flooding patterns affecting the George Trust’s crop-land in 2003,” and plaintiffs expert’s report “plausibly suggests that crop-land flooding and damage ... may have been a direct, natural, or probable result of the Corps Projects”).

Following the opinion dismissing the timber claims, discovery was reopened. Defendant subsequently filed a motion for summary judgment, submitting with its motion expert declarations to rebut the 2008 expert report and 2009 declaration of Dr. Jerry Overton, C.P.G., President and Senior Hy-drogeologist/Hydrologist for ATOKA, Inc. (the “Overton Report”). The Overton Report was proffered by plaintiff in response to defendant’s prior motion to dismiss, but before the George Trust amended its complaint to include its crop-land claim. See George Family Trust, 91 Fed.Cl. at 184; Declaration of Dr. Jerry Overton, Aug. 27, 2009.3

The George Trust continues to rely on the Overton Report, which is limited to a “deter-min[ation regarding] the extent of flooding of the timbered portions of the George Family Trust properties.” Overton Report at 2. Although Dr. Overton’s report sought to determine “the duration of flooding on the subject properties during the prime bottomland hardwood growing season, July through September,” it does not discuss directly plaintiffs crop-land. Id.

The court discussed the Overton Report at • length in its prior opinion. See George Family Trust, 91 Fed.Cl. at 184-87. In brief, Dr. Overton attributes flooding on plaintiffs properties to the Corps Projects, citing a March 1986 letter from Charles Baxter, Field Supervisor of the U.S. Department of Interi- or’s Fish and Wildlife Service, to Colonel Robert Whitehead of the Corps as evidence that a majority of Big Creek’s flooding is “from headwater sources, including river flow directly resulting from releases from [the Corps’s] water control structures.” Overton Report at 10. Dr. Overton determined that, due to overbank flooding from Prairie Cyprus Creek, the George Trust properties would flood when Prairie Cyprus Creek’s elevation stage level reached 145 feet mean sea level (“msl”). Id. at 15. Because of the similar elevations between the St. Charles Gauge and Prairie Cyprus Creek, he estimated that plaintiffs properties would flood when the St. Charles Gauge recorded an elevation of 145 feet (msl). Id. However, Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
97 Fed. Cl. 625, 2011 U.S. Claims LEXIS 59, 2011 WL 475001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-family-trust-ex-rel-george-v-united-states-uscfc-2011.