Narramore v. United States

30 Fed. Cl. 383, 1994 U.S. Claims LEXIS 18, 1994 WL 28810
CourtUnited States Court of Federal Claims
DecidedFebruary 1, 1994
DocketNo. 92-375 L
StatusPublished
Cited by1 cases

This text of 30 Fed. Cl. 383 (Narramore 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
Narramore v. United States, 30 Fed. Cl. 383, 1994 U.S. Claims LEXIS 18, 1994 WL 28810 (uscfc 1994).

Opinion

OPINION

WIESE, Judge.

INTRODUCTION

This is an action to recover just compensation under the Fifth Amendment for the alleged informal taking of an additional property interest in lands over which the Government had earlier acquired a flowage easement through formal condemnation.

Plaintiffs are landowners whose property lies upstream of the Painted Rock Dam on the Gila River in Arizona. The dam was constructed by the U.S. Army Corps of Engineers in 1959 for the “control of flood in downstream overflow areas along the Gila River area in Arizona, along the lower Colorado River Valley in Arizona and California, and for other uses incident thereto.” United States v. 4,566.26 Acres of Land, More or Less, Civ. No. 3164 PHX, trial tr. at 1239 (Dist.Ariz. filed Oct. 13,1959) (trial transcript of formal condemnation action). The flow of water through the dam is controlled by gates installed at the level of the streambed — approximately 530 feet above mean sea level (msl). The top of the spillway is at 661 msl. Plaintiffs’ lands lie chiefly between elevations 580 and 610 msl.

Because operation of the dam necessarily meant that flood waters would overflow the river channel above it and thus inundate low-lying farmlands upstream from the dam, the Corps sought flowage easements, by formal condemnation, over the properties involved. Plaintiffs’ property was one of a number of such properties for which flowage easements were sought. The notice of condemnation described the easement as a “perpetual right, power, privilege and easement occasionally to overflow and submerge said lands and all structures and improvements thereon.” Id., trial tr. at 1240.

The Government’s calculations as to the value of the flowage easement (i.e., the decrease in land value wrought by the easement) were based, as they had to be, on the frequency and severity of expected floods; the storage capacity of upstream reservoirs; and, of course, the rate at which water would be released from the dam. The release rate was of particular importance because it determined the length of time the water could be expected to remain on the burdened land.

To develop predicted flooding frequencies, the Corps relied upon historical data. That [385]*385is, it was assumed that the rainfall patterns recorded over the 66 year period between 1888 and 1954 would generally repeat themselves in the years following completion of the dam. Thus, lands lying below 580 msl were expected to be covered by floodwaters at least once every 5 years. In accordance with internal policy, the Corps condemned these lands in fee. For lands lying at higher elevations, however, where the frequency of inundation would be less, the Corps sought flowage easements.

The schedule of expected releases from the dam that was made available to the appraisers at the time of the condemnation action is known as Schedule A (or “Plan A”). Under Schedule A, the rate of release was tied to the height of the flood waters being held behind the dam. Discharge rates were to range from 2,500 cubic feet per second (efs) when the water was at low elevations, to 22,500 cfs when the water reached 640 msl and above.

Because of constraints on downstream channel capacity, however, this anticipated release schedule was never actually followed. According to plaintiffs, the Corps considered other release schedules but ultimately decided to abandon the idea of adhering to any fixed release plan. The Government’s failure to adhere to Schedule A, and the prolongation of periodic inundation attributable to that failure, forms the crux of this action for an additional taking.

FACTS AND PROCEDURAL HISTORY

At the 1963 condemnation trial, both the Government and the Narramores (then in the posture of defendants) relied on expert testimony as to the before and after values of the land. Much of the trial testimony focused on issues such as comparable sales; little emphasis was placed on the release plan. Nevertheless, plaintiffs now assert that all appraisal estimates presented to the jury were based on the assumption that flood waters would be released from the dam in accordance with Schedule A discharge rates.

To clarify this point, plaintiffs offer the affidavit of Leonard Halpenny, a hydrologist who served as a Government expert witness at the condemnation proceeding. Halpenny states:

[I]t is impossible to compute filling frequencies or flood routing studies through a reservoir behind a dam unless a fixed plan of releases from the dam is used.
All of the expert testimony [at the Nar-ramore condemnation trial] was based upon filling frequencies and routing studies prepared by the Army Corps of Engineers which used Plan A as the fixed operational discharge of the Painted Rock Dam. This was a tacit, underlying assumption of all experts, be they hydrologists, appraisers or otherwise.
... [P]rior to 1966 it was not considered by anyone that Plan A discharge would cause any problems downstream. In fact it was assumed that the downstream channel would be able to handle Plan A discharges and that this would be the manner of operation of the dam.

At trial, the Government’s experts stated that the gates in Painted Rock Dam would remain open during floods, allowing water to pass through at the prescribed rate. During cross-examination, counsel for the Narra-mores attempted to elicit testimony undercutting the reliability of this assertion. The following exchange occurred between the Narramores’ counsel and Albert Gildea, a Corps hydrologist:

Q: ... Now, wouldn’t you say as a matter of fact in the sensible operation of this Painted Rock Dam that at times you would stop the flow of water when there was general rain below the Painted Rock Dam and on the Colorado River that, might flood?
A: Yes. The answer to your direct question is yes, it is the purpose of the dam to protect any damage, if it is possible to protect such damage on the lower river, by storing at Painted Rock Dam. However, we have made considerable studies to show that it is extremely unlikely to have a great flood on the Gila River upstream from Painted Rock Dam and simultaneously a great flood on the Colo[386]*386rado River, so that we could not release our flow through Painted Rock Dam in the prescribed manner.

Civ. No. 3164 PHX, trial tr. at 597-98.

A more detailed explanation of the region’s flooding patterns was provided by Leonard Halpenny, who testified for the Government as follows:

The areas downstream from Painted Rock Dam are low mountain areas, not high, mostly desert. The type of floods we get from that type of country are summer floods. The big floods from that type of area are summer floods.
The big floods in central Arizona are winter floods, and the reason they are big is that a warm rain comes on top of the snow, and there is a great volume to those floods, and those are the great-volume floods which fill the lake. The ones that might originate on the Gila downstream might have temporary high peaks but no volume. They would be out of the way before water from the lake behind the dam would affect them.
Q: Then if there were floods downstream from Painted Rock Dam, that would call for keeping the Painted Rock Dam closed until those—

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Bluebook (online)
30 Fed. Cl. 383, 1994 U.S. Claims LEXIS 18, 1994 WL 28810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/narramore-v-united-states-uscfc-1994.