Board of Supervisors of Issaquena County v. United States ( 2023 )

Case: 22-2026 Document: 37 Page: 1 Filed: 10/19/2023
United States Court of Appeals
for the Federal Circuit
______________________
BOARD OF SUPERVISORS OF ISSAQUENA
COUNTY, MISSISSIPPI,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-2026
______________________
Appeal from the United States Court of Federal Claims
in No. 1:21-cv-01415-LAS, Senior Judge Loren A. Smith.
______________________
Decided: October 19, 2023
______________________
PATRICK WAYNE PENDLEY, Pendley, Baudin & Coffin,
Plaquemine, LA, argued for plaintiff-appellant. Also rep-
resented by JOHN DEAKLE, RONALD JOHNSON, IV, Deakle-
Johnson Law Firm, Hattiesburg, MS.
BRIAN C. TOTH, Appellate Section, Environment and
Natural Resources Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee.
Also represented by TODD KIM.
______________________
Before DYK, BRYSON, and STARK, Circuit Judges.
Case: 22-2026 Document: 37 Page: 2 Filed: 10/19/2023
2 BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US
DYK, Circuit Judge.
The Board of Supervisors of Issaquena County, Missis-
sippi (the “Board”) sued the United States in the Court of
Federal Claims (“Claims Court”), alleging that actions or
inactions by the United States led to flooding in 2018 and
2019 that damaged the Board’s property, destroyed private
property, and reduced economic activity, thereby depriving
the county of tax revenue. The Board sought compensation
for the damage under the Takings Clause of the Fifth
Amendment of the U.S. Constitution. The Claims Court
granted the government’s motion to dismiss, holding that
the Board’s complaint failed to state a takings claim. Alt-
hough we hold that the Board’s complaint failed to state a
claim, we will exercise our discretion to permit the Board
to seek leave from the Claims Court to amend its com-
plaint. We therefore affirm in part and vacate and remand
in part.
BACKGROUND
“At this stage in the proceedings, we accept the
[Board’s] well-pleaded factual allegations as true” and
“may also look to matters incorporated by reference or in-
tegral to the claim, items subject to judicial notice, and
matters of public record.” A & D Auto Sales, Inc. v. United
States, 748 F.3d 1142, 1147 (Fed. Cir. 2014) (internal quo-
tation marks, modifications, and citations omitted).
I
Issaquena County lies on the southern edge of the Mis-
sissippi Delta, an alluvial valley stretching approximately
from the Tennessee-Mississippi border in the north to
Vicksburg, Mississippi in the south. The Mississippi and
Yazoo rivers converge on the east bank of the Mississippi
just north of Vicksburg to form a Y shape, with the Missis-
sippi running from the northwest and the Yazoo running
from the northeast. The county is located in between those
rivers.
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BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US 3
The Delta has often been flooded by its surrounding
rivers, at times compounded by storms resulting from its
proximity to the Gulf of Mexico. See United States v. Spo-
nenbarger, 308 U.S. 256, 260 (1939) (“[O]ccupation of the
alluvial valley of the Mississippi has always been subject
to this constant hazard [of flooding].”). When a river over-
flows its banks, the result is known as headwater flooding.
Backwater flooding, by contrast, happens when a river,
such as the Mississippi, rises more than a tributary, such
as the Yazoo, causing the tributary’s water to surge until it
matches the height of the dominant river. There is no issue
here of damage from the Mississippi’s headwater flooding.
Instead, the Board claims damage that allegedly resulted
from the government’s construction of gates and levees to
prevent backwater flooding, which had the consequence of
interfering with the natural drainage of floodwater created
by excessive rainfall.
In 1927, the Delta was struck by the Great Flood,
which displaced more than 600,000 people, inundated 16
million acres of land, and inspired the Delta Blues classic
“When the Levee Breaks.” During the Great Flood, the
Mississippi was 80 miles wide at Vicksburg, just south of
Issaquena County.
Congress responded in 1928 by authorizing the Army
Corps of Engineers (the “Corps”) to carry out a “comprehen-
sive ten-year program for the entire [Mississippi] valley,
embodying a general bank protection scheme, channel sta-
bilization and river regulation, all involving vast expendi-
tures of public funds.” Sponenbarger, 308 U.S. at 262; see
also Flood Control Act of 1928, Pub. L. No. 70-391, ch. 569,
45 Stat. 534, 535, 537; First Amended Compl. ¶ 17, Board
of Supervisors of Issaquena County v. United States, 160
Fed. Cl. 300 (2022), ECF No. 9 (“Amended Complaint”).
The program resulted in the construction of additional Mis-
sissippi River levees.
The government recognized that the improved Missis-
sippi levees, by retaining more water in the river, led to
more flood risk in the area between the Mississippi and
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4 BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US
Yazoo rivers known as the Yazoo Backwater Area (“Area”).
See M. C. TYLER et al., FLOOD CONTROL ON THE LOWER
MISS. RIVER, H.R. DOC. NO. 77-359, at 37 (1st Sess. 1941).
In 1936, Congress approved a plan to construct an addi-
tional channel, known as the Eudora Floodway, to direct
overflow from the Mississippi to, ultimately, the Gulf of
Mexico. See id. at 11, 30; 33 U.S.C. § 702a-2. In 1941, how-
ever, Congress “abandoned” the floodway and instead
funded the creation of a new levee system to protect the
Area from backwater flooding. See Flood Control Act of
1941, Pub. L. No. 77-228, § 3, 55 Stat. 638, 642–44 (codified
as amended at 33 U.S.C. §§ 702a–702m). 1 The resulting
Yazoo Backwater Project (“Backwater Project”) was com-
pleted in its current form in 1978.
The mainline levee system built up after the Great
Flood runs parallel to the Mississippi. The Backwater Pro-
ject extended the levees from the confluence of the Yazoo
and Mississippi rivers for about 30 miles to the northeast,
running parallel to the Yazoo, where another set of levees
picks up.
1 See also U.S. Army Corps of Eng’rs, 2020 Final
Supplement No. 2 to the 2007 Final Supplement No. 1 to
the 1982 Yazoo Area Pump Project Final Environmental
Impact Statement, Appendix G (“2020 EIS Appx. G”),
¶¶ 2–3, https://www.mvk.usace.army.mil/Missions/Pro-
grams-and-Project-Management/Project-Management/Ya-
zoo-Backwater-Project/Yazoo-Backwater-Report/FileId/30
3749/.
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BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US 5
II
In this case, the Board alleged in its complaint that the
government’s “design, construction, maintenance and sub-
sequent operation” of the Backwater Project led to flooding
of the Board’s land, which constituted a taking under the
Fifth Amendment. Amended Compl. ¶ 6. According to the
Board, the Backwater Project uses levees and floodgates to
protect the Area from backwater flooding. See id. ¶¶ 19,
22. Before the Backwater Project was built, the Yazoo
River played an important role in draining rainfall from
the Area. Id. ¶ 18. “The levees constructed as part of the
Yazoo Backwater Project altered and cut off this natural
drainage in order to protect the area from flooding during
high flood stages along the Mississippi and Yazoo Rivers
and the resulting backwater inundation that occurred.” Id.
To prevent rainfall from accumulating behind the levees,
the Backwater Project uses the floodgates at the Steele
Bayou Control Structure to allow water to drain out of the
Area. See id. ¶¶ 19, 22. When the water is high on the
Mississippi and Yazoo rivers, however, the floodgates
“must remain closed to prevent backwater flooding,” and
“any additional precipitation that falls within the 4,093
square mile drainage area becomes trapped behind the Ya-
zoo Backwater levee system and unable to drain.” Id. ¶ 19.
So if there is both backwater flooding from the Missis-
sippi and extensive rainfall inside the Area between the
mainline and Backwater Project levees, “the Yazoo Basin
essentially becomes a bathtub with no effective drainage
mechanism,” and there is nowhere for the water in the
Area to go except onto dry land. Id. ¶ 20. To address that
possibility, after building the levees and floodgates the
Corps planned to construct a pump system to remove ex-
cess water from the Area. See id. ¶ 19. The Corps never
built the pumps. See id.
From late 2018 through the summer of 2019, the Mis-
sissippi flooded, and heavy rainfall fell in the Area. See id.
¶¶ 22–23. The Corps kept the Steele Bayou Control Struc-
ture gates closed for months to keep out the floodwaters
Case: 22-2026 Document: 37 Page: 6 Filed: 10/19/2023
6 BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US
from the Mississippi. See id. ¶ 22. The rainwater was
trapped behind the levees, with “no outlet through which
to drain into the Mississippi River, Yazoo River, or any-
where else,” and inundated approximately 550,000 acres in
the Area by May 2019. Id. ¶¶ 22–23. “Approximately 687
residential homes and hundreds of additional structures
were damaged or destroyed by the floodwaters,” and
“roads, bridges, culverts and other governmental infra-
structure within Issaquena County” were flooded. Id.
¶¶ 23–24. The flooding also damaged “roadbeds, ditches,
levees, and other drainage structures” in the county, forced
the local government to take emergency actions to keep its
transportation infrastructure working, and resulted “in a
severe reduction of the [county’s] tax revenue.” Id. ¶ 24.
III
On June 1, 2021, the Board sued the United States in
the Claims Court, asserting that the “affirmative acts or
inactions of the U.S. Army Corps of Engineers . . . resulted
in an unlawful taking of [the Board’s] lands under the Fifth
Amendment of the United States Constitution.” Original
Complaint ¶ 3, Board of Supervisors of Issaquena County,
160 Fed. Cl. 300, ECF No. 1. The Board amended its com-
plaint in October 2021 to add more detail about the damage
it alleged it had suffered as a result of the taking. See
Amended Compl. ¶¶ 25–26. According to the Board, it
amended its complaint in part because the government
wanted the Board to list all the roads, culverts, and bridges
that were allegedly destroyed by the flooding. Oral Arg. at
34:07–28.
The United States moved to dismiss the case for failure
to state a claim, and the Claims Court granted the motion.
First, the Claims Court found that the Board alleged that
government inaction—failure to install the pumps and
build the Eudora Floodway—caused flooding in the Area.
Relying on the Supreme Court’s decision in Sponenbarger
and our decision in St. Bernard Parish Gov’t v. United
States, 887 F.3d 1354 (Fed. Cir. 2018), the court held that
government inaction cannot be the basis of a takings claim.
Case: 22-2026 Document: 37 Page: 7 Filed: 10/19/2023
BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US 7
See J.A. 4–6. Second, the Claims Court found that the
Board alleged that government action—building the Back-
water Project and shutting the Steele Bayou Control Struc-
ture gates—caused flooding. See J.A. 6–7. But because the
Board had not alleged that the government caused worse
flooding than that which would have occurred in the ab-
sence of government action designed to prevent flooding,
the Board had not adequately pled a takings claim. See id.The Board appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(3).
DISCUSSION
I
We review dismissals by the Claims Court for failure
to state a claim de novo and “must presume that the facts
are as alleged in the complaint, and make all reasonable
inferences in favor of the plaintiff.” Cary v. United States,
552 F.3d 1373, 1376 (Fed. Cir. 2009). To survive a motion
to dismiss, “the complaint must contain ‘sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.’” A & D Auto Sales, 748 F.3d at 1157(secondary quotation marks and citation omitted) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
The Takings Clause guarantees that the government
will not take private property “for public use, without just
compensation.” U.S. CONST. amend. V, cl. 4. The Supreme
Court has long held that “government-induced flooding can
constitute a taking.” Arkansas Game & Fish Comm’n v.
United States, 568 U.S. 23, 32 (2012) (first citing Pumpelly
v. Green Bay Co., 80 U.S. 166 (1871); and then citing United
States v. Cress, 243 U.S. 316 (1917)); see also Cedar Point
Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021).
II
On appeal, the Board has suggested three theories of
recovery. The first theory does not state a takings claim,
and the second theory was not adequately pled. The third
theory is also not adequately pled in its present form, but
Case: 22-2026 Document: 37 Page: 8 Filed: 10/19/2023
8 BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US
we conclude a potential amendment might clarify the com-
plaint so that it adequately states a claim.
First, the Board alleged that the flooding at issue was
caused by the government’s failure to build pumps in the
Backwater Project, or to construct an alternative drainage
system. See, e.g., Amended Compl. ¶¶ 19, 21, 26. Those
allegations cannot state takings claims. Throughout its
amended complaint, the Board referred to both the govern-
ment’s “affirmative acts or inactions” as the source of the
alleged taking, see id. ¶¶ 3, 6, 26, and asserted that
“[b]ecause the pumps were never completed, an estimated
687 homes were flooded during the Yazoo Backwater Flood
of 2019,” id. ¶ 21. But as we have held, “[t]akings liability
must be premised on affirmative government acts.” St.
Bernard Parish, 887 F.3d at 1362; see also Oral Arg. at
11:59–12:26 (Board counsel agreeing with the court that
“[f]ailure to put the pumps in doesn’t state a takings
claim”). The government’s failure to install pumps or to
construct an additional floodway cannot result in takings
liability.
Second, the Board suggests on appeal that the original
government projects to shore up the Mississippi levee sys-
tem after the Great Flood—built before the Backwater Pro-
ject—were “expected [to] increase flood heights” on the
Mississippi, requiring “additional flood protection for the
Yazoo Backwater Area.” Appellant’s Br. 5 (internal quota-
tion marks and citation omitted). The Board in its com-
plaint made no claim based on a theory involving the flood
control measures on the Mississippi undertaken almost a
century ago. Indeed, the Board’s claim for relief rested en-
tirely on the Corps’s actions vis-à-vis the Backwater Pro-
ject’s construction and operation, rather than any earlier
government actions. See Amended Compl. ¶¶ 29–30; see
also Appellant’s Br. 3 (summarizing the Board’s allegations
as relating solely to the Backwater Project). The only
claims the Board even attempted to state involved govern-
ment actions beginning no earlier than 1941.
Case: 22-2026 Document: 37 Page: 9 Filed: 10/19/2023
BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US 9
Third, the Board alleged that the Corps’s construction
and operation of the Backwater Project led to flood damage.
See Amended Compl. ¶¶ 6, 19–23, 27, 29–30. But the
Board in its complaint never plausibly explained how the
Backwater Project, which indisputably protects the Area
from backwater flooding, see id. ¶ 18, led to worse flooding
than would have occurred in its absence. “To survive a mo-
tion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plain-
tiff must therefore present “factual content that allows the
court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id.; see also Bot M8
LLC v. Sony Corp. of Am., 4 F.4th 1342, 1352 (Fed. Cir.
2021).
As we held in St. Bernard Parish, the crucial causality
question in cases like this is whether “the flood damage
that actually occurred” was worse than “the flood damage
that would have occurred if there had been no government
action at all.” St. Bernard Parish, 887 F.3d at 1363. That
analysis “must consider the impact of the entirety of gov-
ernment actions that address the relevant risk” by as-
sessing whether the plaintiff’s damage was greater than it
would have been if the government had not acted to “pre-
vent[] the same type of injury on the same property where
the damage occurred.” Id. at 1364, 1366. 2 The Board’s
2 See also Arkansas Game & Fish Comm’n v. United
States, 736 F.3d 1364, 1372 n.2 (Fed. Cir. 2013) (holding
that “the proper comparison” for causation analysis was
“between the flooding that occurred prior to the construc-
tion of [the government dam that plaintiff argued led to
flooding] and the flooding that occurred during [the time of
the asserted taking]”); Sponenbarger, 308 U.S. at 266–67
(“[I]f governmental activities inflict slight damage upon
land in one respect and actually confer great benefits when
Case: 22-2026 Document: 37 Page: 10 Filed: 10/19/2023
10 BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US
allegations here do not currently allow us to draw the rea-
sonable inference that the United States is liable for such
but-for damage.
As discussed above, the Backwater Project is a series of
levees and floodgates that shield the Area from backwater
flooding from the Yazoo river. As shown in the Corps-pro-
duced map below, of which we take judicial notice, the
mainline levees generally guard the Area against flooding
from the Mississippi river to the west and the Backwater
Project generally blocks flooding from the south and east. 3
The Corps allows water to drain out of the leveed Area by
opening the Steele Bayou Control Structure gates when
water on the landside is at a minimum height and higher
than the water on the riverside. When water is higher out-
side than inside the levee, “the flood gates at the Steele
measured in the whole, to compensate the landowner fur-
ther would be to grant him a special bounty.”).
3 The map is reproduced, as annotated by the court
to circle the location of the Steele Bayou Control Structure,
from U.S. Army Corps of Engineers, Final Supp. No. 1 to
the 1982 Yazoo Area Pump Project Final Environmental
Impact Statement, Appx. 4 (2007),
https://www.mvk.usace.army.mil/Missions/Programs-and-
Project-Management/Project-Management/Yazoo-Backwa-
ter-Project/Yazoo-Backwater-Report/FileId/259737/, at
plate 4-1. Levees are marked on the map with dark lines.
We may take judicial notice of it because it is “accurately
and readily [discernible] from sources whose accuracy can-
not reasonably be questioned.” Apple Inc. v. Qualcomm
Inc., 992 F.3d 1378, 1384 (Fed. Cir. 2021) (alteration in
original) (quoting Fed. R. Evid. 201(b)).
Case: 22-2026 Document: 37 Page: 11 Filed: 10/19/2023
BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v . US 11
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Case: 22-2026 Document: 37 Page: 12 Filed: 10/19/2023
12 BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US
The Board does not appear to dispute that the Backwa-
ter Project protects Issaquena County from backwater
flooding. See Amended Compl. ¶¶ 18–19. But it neverthe-
less avers that the Backwater Project led to flooding be-
cause it prevented rainwater from draining out of the Area
when the gates were closed. See id. ¶¶ 20–23, 27. The
Amended Complaint on its face does not plausibly allege
any flooding of the Board’s land greater than would have
taken place if the Backwater Project had not been built.
To start, as the Board effectively admits, if the Back-
water Project had not been there, the Area would almost
certainly have been struck with backwater flooding in 2018
and 2019. At that time, “the Mississippi River experienced
the longest extended period of near record-high stages
since the Great Flood of 1927,” and “the gates at the Steele
Bayou [C]ontrol [S]tructure were forced to remain closed
for months to prevent Mississippi River water from enter-
ing and flooding the Yazoo Backwater Area.” Id. ¶ 22. The
complaint thus appears to concede that absent the Back-
water Project, backwater flooding would have entered the
Area. The Board has never alleged that the Backwater
Project made Mississippi river flooding worse.
Nor does the complaint in its present form plausibly
explain how the construction of the Backwater Project
could have led to worse rainwater flooding than would have
occurred in its absence. Though the Board alleges that the
Backwater Project prevents the Area from naturally drain-
ing into the Mississippi and Yazoo rivers, id. ¶ 18, it sug-
gests that this is only a problem “when high flood stages
along the Mississippi and Yazoo Rivers coincide with ex-
cessive rainfall events within the Yazoo Basin,” id. ¶ 20.
But when the Mississippi and Yazoo rivers are high enough
to force the gates closed, no rainwater could drain out of
the Area with or without the Backwater Project. See id.
¶¶ 19, 22. So the current complaint does not plausibly ex-
plain how the Project’s existence in that scenario could
worsen rainwater flooding.
Case: 22-2026 Document: 37 Page: 13 Filed: 10/19/2023
BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US 13
For similar reasons, the Board has not explained how
the Corps’s operation of the Backwater Project worsened
flooding. The complaint focuses on the government’s deci-
sion to keep the Steele Bayou Control Structure gates
closed when the Mississippi was in flood. See id. ¶¶ 22, 27.
But as the Board concedes, opening the gates during that
time would only have “exacerbated” the flooding. See Oral
Arg. at 34:44–35:03 (Board counsel conceding that the
Corps could not “open the gate[s] in 2019 . . . when the . . .
riverside was higher than the landside . . . because that
would have exacerbated [the flooding in the Area]”); see
also Amended Compl. ¶ 22.
For the first time on appeal, the Board attempts to rem-
edy this gap, arguing that the government is systemati-
cally increasing flood risk by preventing the Backwater
Area from draining when the Mississippi is not in flood.
With sufficient factual content, such a theory might pre-
sent a plausible allegation of but-for causation as to the
flooding at issue. But there is no specific allegation in the
Board’s complaint that the Backwater Project made things
worse by blocking water from draining during non-flood pe-
riods. See id. ¶¶ 22, 27 (blaming rainwater flooding largely
on the government’s decision to close the floodgates, not the
Project’s general retention of water in the Area).
The Board also seeks to distinguish St. Bernard Parish
on the grounds that that case was decided after trial, while
here the Claims Court dismissed the case on the pleadings.
But as we have held in the regulatory takings context, tak-
ings plaintiffs must plausibly plead but-for causation to
survive a motion to dismiss. In A & D Auto Sales, we ex-
plained that because “there can be no regulatory taking
without a showing of but-for decline in value, a takings
plaintiff must . . . allege sufficient facts in its complaint to
show what use or value its property would have had.” 748
F.3d at 1157. Likewise, there can be no physical takings
liability without a showing of “what would have occurred if
the government had not acted,” St. Bernard Parish, 887
F.3d at 1362 (internal quotation marks and citation
Case: 22-2026 Document: 37 Page: 14 Filed: 10/19/2023
14 BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US
omitted). A takings plaintiff, whether alleging a physical
or a regulatory taking, must allege sufficient facts in its
complaint to show the value of its property but for the gov-
ernment’s actions. See A & D Auto Sales, 748 F.3d at 1157;
see also Associated Gen. Contractors of California, Inc. v.
Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983)
(“It is not . . . proper to assume that the [plaintiff] can prove
facts that it has not alleged or that the defendants have
violated the . . . laws in ways that have not been alleged.”
(quoted with approval in Twombly, 550 U.S. at 563 n.8)).
In the alternative, the Board argues that its pleading
meets the requirements of St. Bernard Parish. We are not
persuaded. For example, the Board averred that once the
Backwater Project was in place “without the pumps, the
Yazoo Basin essentially [became] a bathtub with no effec-
tive drainage mechanism, and the United States knew or
should have known this type of [rainwater] flooding event
was likely to occur.” Amended Compl. ¶ 20. The Board
further alleged that “[r]outing the drainage of the entire
Yazoo Basin to the Steele Bayou Control Structure, and al-
lowing the floodgate to remain closed, created a massive
pool of water for which there is no drain.” Id. ¶ 27. To the
extent these allegations rest on the government’s failure to
install the pumps, they fail to state a claim, as previously
discussed. To the extent that the Board is alleging that the
construction of the Backwater Project caused flooding, the
complaint fails to explain (or even directly allege) how the
Project brought about a worse result than would have oc-
curred anyway.
The Board also suggests that even if its Amended Com-
plaint did not adequately allege but-for causation, it has
explained its theory of but-for causation in its appellate
brief, relying in part on an engineering report prepared by
the Corps for administrative purposes unrelated to this lit-
igation. The Board also tells us that by the time it filed its
Amended Complaint, it had retained a hydrological expert
and a civil engineer. The hydrological expert was prepared
to opine that flooding is of a greater depth and duration as
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BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US 15
a consequence of the government’s actions. See Appellant’s
Br. 22–23. These expert reports were not submitted in the
Claims Court and are not part of the record.
If the Board had articulated in its Amended Complaint
all that it has argued to us, including its explanation of how
the Project could have physically exacerbated flooding in
the Area, that might have been sufficient to allege but-for
causation. See, e.g., Appellant’s Br. 7 (“Plaintiff’s property
has experienced flooding which is of a greater depth and
duration than if the Government had taken no action at
all.”); id. at 12 (“[T]he construction and operation of the Ya-
zoo Backwater Project . . . has resulted in more severe and
prolonged flooding of Plaintiff’s lands.”); id. at 22 (“[E]ven
when the Steele Bayou gates are fully open, the water is
unable to evacuate as quickly as it naturally would had the
Government taken no action in the Yazoo Backwater
Area.”). Incorporation of the Corps’s engineering report
into the complaint, paired with sufficient explanation of its
relevance, may likewise have pushed the Amended Com-
plaint “across the line from conceivable to plausible.” Iq-
bal, 556 U.S. at 680 (quoting Twombly, 550 U.S. at 570).
The report states, for example: “After the significant rain-
fall in the last week of February [2019], elevations on the
Mississippi River at Vicksburg and the Steele Bayou river-
side started to fall. However, the Steele Bayou flood con-
trol structure gates remained closed throughout March,
preventing the Yazoo Backwater to drain.” 2020 EIS Appx.
G ¶ 68. Taking all reasonable inferences in favor of the
Board, the report might be read as supporting a finding
that the government’s construction of the Steele Bayou
Control Structure and its decision to keep its gates closed
made the flooding worse than it would have been if the gov-
ernment had never even built the Backwater Project. How-
ever, the Board did not make any allegations in its
Amended Complaint based on the report or its retained ex-
perts. Nor did it include even a single sentence explicitly
making the express allegation that the flooding experi-
enced following the government’s actions was worse than
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16 BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US
the flooding that preceded it, resulting in the Board’s dam-
age.
In evaluating the sufficiency of a complaint, we gener-
ally do not consider new arguments made on appeal that
are not included in the complaint. See Kimble v. United
States, 991 F.3d 1238, 1244 (Fed. Cir. 2021). We will not,
therefore, make an initial determination as to whether a
complaint that adds some or all of what the Board has iden-
tified to us would be sufficient to state a claim. But we are
persuaded that the Board should have an opportunity to
pursue such an assessment from the Claims Court in the
first instance.
Although the complaint failed to state a claim, in our
discretion, we think it appropriate to allow the Board to
ask the Claims Court to consider an amended complaint
that would explain how the construction and operation of
the Backwater Project led to increased flooding compared
to a world in which the Project had not been built. See Mit-
tleman v. United States, 104 F.3d 410, 417 (D.C. Cir. 1997)
(sua sponte remanding to allow plaintiff to “refine” unclear
portion of complaint); Garlick v. Quest Diagnostics Inc., 309
F. App’x 641, 643 (3d Cir. 2009) (“[T]he courts of appeals
have the inherent authority sua sponte to order a district
court to grant a plaintiff leave to amend her complaint
where portions of the pleading are less than pellucid in
ways that frustrate application of the relevant law.”). Alt-
hough the Board did not seek leave from the Claims Court
to file a second amended complaint and did not expressly
ask us for a remand for that purpose (until the issue came
up at oral argument), the Board has now expressed its in-
terest in seeking to amend. See Oral Arg. at 7:39–8:40. 4
4 Also at oral argument, the government objected to
granting leave to amend the complaint, citing party
presentation principles and noting that the Board failed to
file a motion for leave to amend or ask for such relief in its
Case: 22-2026 Document: 37 Page: 17 Filed: 10/19/2023
BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US 17
Ordinarily, we would not grant any relief under such
circumstances. See Taylor v. United States, 959 F.3d 1081,
1091 (Fed. Cir. 2020) (finding, in takings case, no abuse of
discretion where Claims Court did not permit amendment
that was never requested of it and was first mentioned on
appeal). The Claims Court did not abuse its discretion
here, and not even the Board suggests it did. Nonetheless,
in these unusual circumstances—where the plaintiff’s alle-
gations in its brief on appeal may be sufficient to state a
claim and where the government does not assert meaning-
ful prejudice—we believe that we can appropriately exer-
cise our discretion to provide the Board an opportunity to
seek leave to amend one last time and attempt to state a
plausible takings theory based on government action. See
A & D Auto Sales, 748 F.3d at 1158–59 (granting leave to
amend where plaintiffs failed to plead economic loss while
making clear they intended to establish loss of value);
Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (noting
that Federal Rules of Civil Procedure provide for “a liberal
notice pleading regime, which is intended to ‘focus litiga-
tion on the merits of a claim’ rather than on technicalities
that might keep plaintiffs out of court” (quoting
appellate brief. See Oral Arg. at 20:04–21:13. The Board’s
failure to seek leave appears to have been an unintentional
forfeiture, not a deliberate waiver, and courts may sua
sponte consider forfeited positions. See United States v.
Campbell, 26 F.4th 860, 872 (11th Cir. 2022) (en banc) (cit-
ing Wood v. Milyard, 566 U.S. 463, 471 & n.5 (2012)); see
also United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579
(2020) (“There are no doubt circumstances in which a mod-
est initiating role for a court is appropriate.”).
We think it plain that the Board did intend to plead
that the government’s actions in constructing and operat-
ing the Project caused worse flooding damage than would
otherwise have occurred. But the Board failed to ade-
quately make these allegations in its original or amended
complaints.
Case: 22-2026 Document: 37 Page: 18 Filed: 10/19/2023
18 BOARD OF SUPERVISORS OF ISSAQUENA COUNTY v. US
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002))); 6
Charles Alan Wright et al., Federal Practice & Procedure
§ 1473 (3d. ed., April 2023 update) (A “basic polic[y]” of the
Federal Rules is “that pleadings are not an end in them-
selves but are only a means to assist in the presentation of
a case to enable it to be decided on the merits.”).
We do not require that the Claims Court allow such
amendment. We intend only to require the Claims Court
to consider whether such amendment should be allowed
under the typical standards governing amendments under
Rule 15(a)(2) of the United States Court of Federal Claims.
We therefore vacate the Claims Court’s dismissal and re-
mand for proceedings consistent with this opinion. 5
AFFIRMED IN PART, VACATED AND REMANDED
IN PART
COSTS
No costs.
5 There is an additional issue presented by the com-
plaint here that we do not reach: whether expected tax rev-
enue is a compensable property interest under the Takings
Clause. See, e.g., 2 Julius L. Sackman et al., Nichols on
Eminent Domain § 5.03[6][f][iii] (3d ed. 2023) (“A tax[ing]
[authority] does not have a compensable interest in a prop-
erty taken by eminent domain.” (capitalization altered));
United States v. 6,321 Acres of Land More or Less In Suf-
folk Cnty., 479 F.2d 404, 406 (1st Cir. 1973) (recognizing
the “the general rule making non-compensable [under the
Takings Clause] an expectation of taxes”); Adams v. United
States, 391 F.3d 1212, 1225 (Fed. Cir. 2004) (declining “to
treat a statutory right to be paid money as a legally-recog-
nized property interest”).