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In the United States Court of Federal Claims In the United States Court of Federal Claims No. 11-389L (Filed: August 20, 2013) _________ DENNIS J. QUEBEDEAUX, on behalf of * himself and all other similarly situated * persons and entities, * Takings case; Motion to dismiss under * RCFC 12(b)(6); Morganza Floodway – Plaintiffs, * release of water; Iqbal/Twombly – pleading standard; Sponenbarger doctrine; Tort vs. * takings; Rejection of bright line test in favor v. * of multi-factored approach; Motion denied. * THE UNITED STATES, * * Defendant. * _________ OPINION __________ Richard Lyle Coffman, The Coffman Law Firm, Beaumont, TX, for plaintiffs. Joshua Pratt Wilson, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., with whom was Assistant Attorney General Ignacia S. Moreno, for defendant. ALLEGRA, Judge: This takings case is before the court on defendant’s motion to dismiss the complaint pursuant to RCFC 12(b)(6). Plaintiffs own land in the Morganza Floodway and Atchafalaya River basin, part of the Lower Mississippi River Valley. They seek just compensation under the Fifth Amendment for an alleged takings associated with the inundation of their property with water diverted from the Mississippi River.1 Based on its careful review of the briefs, and oral argument, the court hereby DENIES defendant’s motion. 1 Plaintiffs seek certification of a class of similar-situated property holders. The court has deferred consideration of class certification under RCFC 23 until resolution of this motion. I. BACKGROUND2 The facts required here are relatively simple and few. The Morganza Floodway, which includes the Morganza Spillway, is part of the Mississippi River & Tributaries Project (the MR&T Project) – the comprehensive federal system of levees, flood control channels, dams, pumping stations, and reservoirs designed to control floods on the Mississippi River.3 The Morganza Spillway is a structure on the Mississippi River that sits at the head of the Morganza Floodway. This 3,900-foot structure features 125 floodgates and other structures. Ordinarily, the Spillway gates remain closed. However, during flood events, the Morganza Spillway can be opened to divert water through the Morganza Floodway into the Atchafalaya River basin. Upriver on the Mississippi from the Morganza Spillway lies another flood control structure, the Old River Control Structure. This is used routinely to divert water from the Mississippi River into the Atchafalaya River basin. The Morganza Spillway is opened only during extreme flood events to divert additional water into the Atchafalaya River basin. The Morganza Spillway has been opened only twice – once during a 1973 flood, and again on or about May 14, 2011, during the flood event that underlies plaintiffs’ lawsuit. In the latter instance, the Army Corps of Engineers (the Corps) became concerned that flooding along the Mississippi River would overwhelm the levees in Baton Rouge and New Orleans. After considering several alternatives, the Corps decided to open the Morganza Spillway to 21 percent of its maximum capacity to prevent flooding downriver. As a consequence, the Morganza Floodway, the Atchafalaya River basin, and its residents and property owners were inundated with flood waters between May 14, and July 7, 2011. According to plaintiffs, this flooding destroyed, damaged and/or devalued their crops, farms, homes, businesses, buildings, structures, equipment, oil and gas wells, fishery waters, and other real and personal property. On June 15, 2011, plaintiffs filed a complaint in this court seeking just compensation for the destruction to their property caused by the flooding. They allege that defendant’s intentional diversion of flood water “constitutes an ongoing, continuous and permanent physical taking” of their property without just compensation. They aver that the existence of the MR&T Project evidences defendant’s permanent commitment to the intermittent, but inevitably recurring, flooding of plaintiffs’ property and businesses. On September 21, 2011, plaintiffs filed their amended complaint. On October 19, 2011, defendant filed a 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Briefing and argument of that motion have been completed. 2 These facts are drawn largely from plaintiffs’ complaint, and, for purposes of this motion, are assumed to be correct. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 3 Congress authorized the creation of the MR&T Project following the great 1927 Mississippi River Flood. See Cent. Green Co. v. United States, 531 U.S. 425, 432 (2001). - 2 - II. DISCUSSION Deciding a motion to dismiss “starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiff’s claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997); see also Twombly, 550 U.S. at 554-55. To survive a motion to dismiss for failure to state a claim under RCFC 12(b)(6), the complaint must have sufficient “facial plausibility” to “allow[] the court to draw the reasonable inference that the defendant is liable.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Klamath Tribe Claims Comm. v. United States, 97 Fed. Cl. 203, 208 (2011). The plaintiffs’ factual allegations must “raise a right to relief above the speculative level” and cross “the line from conceivable to plausible.” Twombly, 550 U.S. at 555, 570; see also Dobyns v. United States, 91 Fed. Cl. 412, 422-28 (2010) (examining this pleading standard). Nevertheless, the Federal Circuit has reiterated that “[i]n ruling on a 12(b)(6) motion to dismiss, the court must accept as true the complaint’s undisputed factual allegations and should construe them in a light most favorable to the plaintiff.” Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009); see also Bank of Guam v. United States, 578 F.3d 1318, 1326 (Fed. Cir. 2009), cert. denied, 130 S. Ct. 3468 (2010); Petro-Hunt, LLC v. United States, 90 Fed. Cl. 51, 68 (2009). Plaintiffs seek compensation from the United States pursuant to the Fifth Amendment’s instruction: “[N]or shall private property be taken for public use, without just compensation.” Because defendant conducted no formal exercise of eminent domain, this case is for an alleged “inverse condemnation.” See Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009), cert. denied, 129 S. Ct. 2878 (2009); Moden v. United States, 404 F.3d 1335, 1342 (Fed. Cir. 2005). Defendant makes two arguments as to why plaintiffs’ complaint should be dismissed. First, it argues that because plaintiffs receive ongoing protection from the MR&T Project, they must allege, as part of their takings claim, that the injuries they suffered from the operation of the Morganza Spillway exceeded the benefits conferred on them by the federal flood control system. Second, defendant asseverates that, as a matter of law, a single flooding event, of the sort alleged by plaintiffs, cannot constitute a takings. The court will consider these arguments, and plaintiffs’ responses thereto, seriatim. The Takings Clause is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960); see also First English Evangelical Lutheran Church of Glendale v. Cnty. of L.A., 482 U.S. 304, 318-19 (1987); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-25 (1978). And “[w]hen the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 322 (2002) (citing United States v. Pewee Coal Co., 341 U.S. 114, 115 809 (1951)). “These guides,” the Supreme Court recently reminded, “are fundamental in our Takings Clause jurisprudence.” Ark. Game & Fish Comm’n v. United States, 133 S. Ct. 511, 518 (2012). In that same case, the Court emphasized that “most takings claims turn on situation- specific factual inquiries,” adding “that no magic formula enables a court to judge, in every case, - 3 - whether a given government interference with property is a taking.” Id. The Court admitted, however, that in rare instances, it has “drawn some bright lines,” giving, as examples, situations in which a permanent physical occupation of property occurs or where regulations require a property owner to sacrifice all economic benefit associated with its land. Id. (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992)). The Supreme Court long ago recognized that government-induced flooding can constitute a takings. See United States v. Cress, 243 U.S. 316, 328 (1917); Pumpelly v. Green Bay & Miss. Canal Co., 80 U.S. 166, 181 (1871) (“where real estate is [] invaded by superinduced additions of water . so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution”); see also Loretto, 458 U.S. at 427-28; Cotton Land Co. v. United States, 75 F. Supp. 232, 232-35 (Ct. Cl. 1948). More recently, the Court made clear that floods that are temporary in duration can be compensable and gain no automatic exemption from the Takings Clause. Ark. Game & Fish, 133 S. Ct. at 519 (“our precedent indicates that government-induced flooding of limited duration may be compensable”); see also United States v. Dickinson, 331 U.S. 745, 751 (1947). These and other cases indicate that “government actions may not,” in effect, “impose upon a private landowner a flowage easement without just compensation.” Ridge Line, Inc. v. United States, 346 F.3d 1346, 1353 (Fed. Cir. 2003).
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