Robertson v. United States ( 2023 )

In the United States Court of Federal Claims
No. 17-60L
(Filed April 20, 2023)
NOT FOR PUBLICATION
* * * * * * * * * * * * * * * * * *
*
*
GAIL ROBERTSON et al., *
*
Plaintiffs, *
*
v. *
*
THE UNITED STATES, *
*
Defendant. *
*
* * * * * * * * * * * * * * * * * *
ORDER
As stated on the record at today’s status conference, the government’s motion
to dismiss this case for failure to state a claim is DENIED without prejudice.
The issue raised by the government’s pending motion to dismiss this case for
lack of subject-matter jurisdiction is whether plaintiffs’ takings claims accrued more
than six years prior to the filing of the complaint, and are thus untimely under our
statute of limitations, 28 U.S.C. § 2501. The properties involved in this case
suffered flooding in 1983 and again in March and August of 2016. Plaintiffs
initially filed their claim—alleging the taking of a permanent flowage easement—in
January 2017. The government argues that plaintiffs’ causes of action accrued
sometime between 1983 and 2008. According to the government, plaintiffs learned
that flooding would inevitably recur—thus accruing a flowage easement claim—
both from the 1983 flood itself and from the information obtained during prior state
court litigation. In contrast, plaintiffs contend that it was not clear that floods
would inevitably recur until they did, in 2016. Plaintiffs maintain that their claims
could not have accrued before that time.
The question is complicated by the very nature of the claims raised by
plaintiffs. Under binding precedents, courts use a multi-factor test in flood takings
cases, considering factors such as the duration of the invasion, the government’s
intent, foreseeability, and the character of the land at issue. See Cedar Point
Nursery v. Hassid, 141 S. Ct. 2063, 2078 (2021); Arkansas Game & Fish Comm’n v.
United States, 568 U.S. 23, 38–39 (2012). One major factor is the severity of the
interference, which includes the frequency of recurrence. Ark. Game, 568 U.S. at
39. Under this test, a second flood is not an absolute prerequisite for accrual. But a
single flood without any additional evidence of inevitable recurrence is typically
insufficient as a matter of law. See Stueve Bros. Farms, LLC. v. United States, 105
Fed. Cl. 760, 764–65 (2012), aff’d, 737 F.3d 750, 757, 760 (Fed. Cir. 2013);
Quebedeaux v. United States, 112 Fed. Cl. 317, 324 (2013).
After a single flood, it may be reasonable either to expect future floods or to
deny that future floods will inevitably recur. See Hartwig v. United States, 485 F.2d
615, 617–18, 620 (Ct. Cl. 1973); Big Oak Farms v. United States, 105 Fed. Cl. 48,
53–54 (2012). The particular facts and circumstances dictate the result. Moreover,
even if an easement was taken by a first flood, later flooding may have exceeded the
scope of that original easement, thus alerting plaintiffs about the existence of a
separate second taking. See Narramore v. United States, 960 F.2d 1048, 1051 (Fed.
Cir. 1992); cf. Bistline v. United States, 226 Ct. Cl. 282, 283, 288 (1981) (finding that
the scope of the initial easement was not exceeded). The Supreme Court’s
recognition of temporary flood takings, Ark. Game, 568 U.S. at 38, underscores this
possibility.
Under controlling precedent, a claim for taking due to flooding had been said
to accrue “after it first became clearly apparent by the passage of time that the
intermittent flooding was of a permanent nature.” Barnes v. United States, 538
F.2d 865, 873 (Ct. Cl. 1976). In light of more recent precedents, including Arkansas
Game, we should probably look for flooding “of a sufficiently recurring nature,”
rather than permanent. In any event, the government acknowledges that an
objective test is used in determining whether a plaintiff should have been aware of
the existence of a claim, Def.’s Mot. at 12 (citing Grass Valley Terrace v. United
States, 46 Fed. Cl. 629, 633 (2000)). But while the late Mr. Robertson knew of the
design issue and its alleged impact on flood susceptibility during the Boudreaux
trial, whether he or his successors should reasonably have known that flooding was
inevitably to recur is another matter. †
Defendant points out that in the Boudreaux litigation, plaintiffs’ experts
testified that rainfall comparable to that which caused the 1983 flood would be
expected more frequently than every fifty years, and as frequently as every ten to
twenty-five years. Def.’s Mot. at 17–18. But the government also introduced
excerpts from that trial showing that the frequency of rainfall was not relevant to
those proceedings. Ex. 6 to Def.’s Mot. at 24. Thus, the judge in that proceeding
never made a determination as to the credibility of these opinions, and this Court is
†See Boudreaux v. Louisiana, No. 71,408, 2003 WL 25767344 (La. Dist. Ct. Aug. 6,
2003).
-2-
not in any position to do so, either. The mere fact that opinions were stated,
without more, does not establish the reasonableness of reliance upon them.
Moreover, as the plaintiffs point out, in arguing in support of the district
court’s dismissal of the Young case before the Fifth Circuit in 2013, three years
before the recurrence of the floods, the federal government took the position that,
with no flooding for thirty years, “There is no continuing injury or damage to
Appellants, just appellants’ fear of another inundation.” Ex. A to Pls.’ Opp’n at 18
(Appellee Brief, Young v. United States, No. 13-30094 (5th Cir. Apr. 10, 2013)).
While this argument does not estop the government from maintaining to the
contrary, it does show that whether recurring flooding was to be expected was a
debatable question.
The severity of the invasion of land due to flooding is, without question, a
factor in determining whether a taking has occurred, and is part of the calculus of
when a claim accrued. But the multi-factor, fact-specific nature of this inquiry
inextricably intertwines the jurisdictional question of whether the claim accrued too
long ago with the merits of the case. Under these circumstances, it is proper to
defer the jurisdictional determination until after discovery has taken place. See
Forest Glen Props., LLC v. United States, 79 Fed. Cl. 669, 678 (2007); Bagwell v.
United States, 21 Cl. Ct. 722, 723–24, 729 (1990); Beuré–Co. v. United States, 16 Cl.
Ct. 42, 52–53 (1988). Whether and at what time plaintiffs had enough information
to reasonably allege a taking cannot be determined at this stage of proceedings.
Therefore, the motion to dismiss is DENIED without prejudice. The
government shall file a response to the Second Amended Complaint on or by May
18, 2023.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Senior Judge
-3-