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Trial. the Opinion Is Organized Into the Following Sections: I In the United States Court of Federal Claims No. 14-183L (Filed: March 13, 2018)* *Opinion originally filed under seal on February 23, 2018 ) IDEKER FARMS, INC., et al., ) ) Fifth Amendment Taking; Missouri Plaintiffs, ) River; Flooding; Liability; Causation; ) Foreseeability; and Severity. 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 Jeffrey H. Wood, Acting Assistant Attorney General, for defendant. Jacqueline C. Brown, Laura W. Duncan, Carter F. Thurman, and Daniela A. Arregui, Washington, D.C., of counsel. TRIAL OPINION FIRESTONE, Senior Judge The pending action was brought by farmers, landowners, and business owners from six states who claim a taking without just compensation in contravention of the Fifth Amendment based on actions by the United States Army Corps of Engineers (“Corps”) on the Missouri River. U.S. Const. amend. V. The plaintiffs claim that the Corps has changed its management of the Missouri River and that these changes have caused more flooding of their properties. In order to manage the litigation, 44 plaintiffs were selected as representative or “Bellwether” plaintiffs (“plaintiffs”). These plaintiffs own or farm properties that extend from Bismarck, North Dakota to Leavenworth, Kansas. Various plaintiffs claim a taking for flooding in 2007, 2008, 2010, 2011, 2013, and 2014. Together, these plaintiffs assert takings claims based on over 100 flood events. The litigation was also divided into two phases. Phase I was focused on the issue of the United States’ liability. Each of the individual plaintiffs was called to testify or present evidence to establish their property interest and the timing and approximate duration of flooding on the relevant parcel of land. The court also heard testimony from numerous expert witnesses and many federal government employees. These individuals testified as to the changes the Corps has made to its management of the Missouri River, whether the Corps’ changes have caused flooding or made flooding more severe for each of the years at issue, and whether the flooding for the years at issue was a foreseeable result of the Corps’ changes. In Phase II of the litigation, the court will decide whether the United States has any defenses to these plaintiffs’ claims and other legal and factual issues associated with proving entitlement to just compensation. For those entitled to just compensation, the court will also decide the appropriate amount of compensation. Phase I of the trial began in Kansas City, Missouri on March 6, 2017 and was moved to Washington, D.C. on April 24, 2017. The trial concluded on June 23, 2017 and 2 was resumed after post-trial briefing1 on November 13, 2017 for eight days of closing arguments. During the 55 days of witness presentations, the court heard testimony from over 95 witnesses and received over 3,250 exhibits into evidence. Set forth below are the court’s findings of fact and conclusions of law for Phase I of the trial. The opinion is organized into the following sections: I. Background Facts; II. Legal Standards; III. Liability Findings (Expert Testimony); IV. Individual Plaintiffs; and V. Conclusions. I. Background Facts 1. The Missouri River Prior to Regulation The Missouri River (“River”) travels 2,341 miles from its source in Three Forks, Montana to its mouth near St. Louis, Missouri.2 PX16 at PLTF-00003114.3 The Missouri River Basin includes most of the Great Plains and extends over 530,000 square miles in ten states: Montana, Wyoming, North Dakota, South Dakota, Minnesota, Iowa, Colorado, Nebraska, Kansas, and Missouri. PX99 at USACE0291936. Historically, the River was largely “wide and shallow,” meandering across “a wide, unconstrained 1 The plaintiffs’ motion (ECF No. 396) to strike exhibit 1 to the United States’ response (ECF No. 382-1) to plaintiffs’ post-trial brief is GRANTED. The court agrees with the plaintiffs that the exhibit was in effect “briefing” and as such exceeded the page limit set by the court in its July 21, 2017 post-trial order (ECF No. 370). 2 The Missouri River, which originally measured 2,546 miles in length, lost approximately 200 miles due to the intensive damming, straightening, and channelization that took place in the last century. PX16 at PLTF-00003114. 3 Many of the background facts have been taken from the 2002 and 2011 reports of the National Research Council whose members are taken from the National Academy of Science. PX16 and PX17. In addition, many facts come from the Environmental Impact Statements that were prepared in connection with various Corps activities on the River. See, e.g., PX99; PX110. 3 floodplain” resulting from constant bank erosion and deposition of sediment. PX390 at USACE0465781; PX99 at USACE0291936-7. The River had “diverse wildlife habitats within the meander belt and formed a natural Missouri River floodplain ecosystem that included open shallow and deep waters, sandbars, wetlands, willow thickets, and riparian woodlands.”4 PX99 at USACE0291936-7. This biodiversity was ensured by the River’s transport and distribution of vast amounts of nutrient-rich sediment, which led to it being known as the “Big Muddy.” PX16 at PLTF-00003159. The River was known for its spring and summer rises due to snowmelt and rainfall in the Plains (spring flooding) and in the Rocky Mountains (summer flooding). Id. Historically, flooding was common and widespread on the Missouri River, drastically impacting the appearance and functionality of the River, with “water spread[ing] across its floodplain [thus] hydrologically connecting the channel[] to its floodplain and backwaters[]” and creating new channels. PX16 at PLTF-00003158-9, PLTF-00003161- 5. Spring flooding tended to last “one to two weeks and was relatively localized,” whereas summer flooding “lasted longer and inundated larger portions of the floodplain.” Id. at PLTF-00003159. Although the River’s main channel was 1,000 to 10,000 feet 4 At the time of Lewis and Clark’s “Corps of Discovery” expedition, the Missouri River was highly diverse, with a wide array of morphologies found in different parts of the River. In many areas, the River “was a multichannel system, with a primary channel and often multiple secondary channels . widespread bars, islands, and shallow sloughs[,]” while in others, it comprised “natural levees, backwater lakes, large meander loops, oxbow lakes, and sandbars and dunes[.]” PX17 at PLTF-00007916 (citing Hallberg et al. and Moody et al.). In addition, various shallower channels and backwater habitats created “slower-moving waters [that were] critical for the reproduction, shelter, and feeding of fish species[,]” while higher lands encompassed “rich forests, prairie grasses, and thick underbrush that contained a myriad of plant species.” PX16 at PLTF-00003165. 4 wide during normal flow periods, the width increased to 25,000 to 35,000 feet during flooding, with the River “flow[ing] bluff-to-bluff and cover[ing] a width up to 17 miles” in certain areas during heavy flooding. PX17 at PLTF-00007916. 2. Regulation of the Missouri River by the Federal Government In the early twentieth century, the federal government determined that it was in the national interest for the “wild, free-flowing” Missouri River “to be controlled for purposes of human settlement and as a resource to support economic development.” PX16 at PLTF-00003157, PLTF-00003098. To meet the demands of settlers and minimize flooding, Congress adopted a series of laws starting with the Rivers and Harbors Act in 1927, which regulated navigation, and the Flood Control Act (“FCA”) in 1917, “which placed flood control on equal footing with navigation within the Corps[.]”5 PX390 at USACE0465778; PX16 at PLTF-00003130. As discussed in detail infra, flood control was to be achieved in part by controlling flow into the River by constructing a series of interlocking dams and reservoirs with controlled releases of water from Gavins Point Dam, the lowest of the six dams constructed. PX99 at USACE0291944-5. In addition, the Corps would eventually construct a series of federal levees to help contain flooding in sections of the River below Gavins Point Dam. PX555 at USACE3590059, USACE3590183. The Corps also constructed a series of structures within the River that were designed to stabilize the 5 Following the Great Mississippi River Flood of 1927, Congress passed the 1936 Flood Control Act which made flooding a “federal responsibility” and created a national flood-control policy. PX16 at PLTF-00003130. 5 River’s banks, limit erosion, and ensure that a deeper, self-scouring channel existed in the center of the River to move flood waters more quickly through the River and allow for navigation. PX16 at PLTF-00003129-30. a. The Missouri River Mainstem Reservoir System Construction of most of the dams and reservoirs by the Corps was authorized by the 1944 FCA.6 The 1944 FCA identified six purposes that the construction and operation of the Missouri River Mainstem Reservoir System (“System”) would serve: flood risk reduction; enhanced navigation; generation of hydroelectric power; irrigation and water quality; recreation; and fish and wildlife. Id. at PLTF-00003132-51. See also PX390 at USACE0465778. The 1944 FCA also required the Corps to follow the broad outlines of what is known as the “Pick–Sloan Plan.” PX17 at PLTF-00007903. Under the Pick–Sloan Plan, the Corps was to operate the System to “reduce the river’s natural hydrologic variability in order to provide a steady and reliable 9-foot deep navigation channel[,]” making use of regulated storage of water in and releases from the reservoirs. PX16 at PLTF-00003109. Congress strengthened the purpose of the Pick–Sloan Plan by authorizing the Missouri River Bank Stabilization and Navigation Project (“BSNP”) in the 1945 Rivers and Harbors Act so as to “facilitate navigation, control flooding, provide water supplies, and meet other social and economic needs.” PX17 at PLTF-00007910.
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