Ideker Farms, Inc. v. United States

Case: 21-1849 Document: 95 Page: 1 Filed: 06/16/2023
United States Court of Appeals
for the Federal Circuit
______________________
IDEKER FARMS, INC., ROBERT ADKINS, JR.,
ROBERT ADKINS, SR., ESTATE OF BETTY AD-
KINS, ESTATE OF ROBERT ADKINS, SR., KEN AD-
KINS, DBA ROBERT ADKINS & SONS
PARTNERSHIP, GERALD SCHNEIDER, DBA BUF-
FALO HOLLOW FARMS, INC.,
Plaintiffs-Cross-Appellants
LYNN BINDER, ELAINE BINDER, TODD BINDER,
APRIL BINDER, TYLER BINDER, VALERIE
BINDER, RICHARD BINDER, DUSTIN BINDER,
DARWIN BINDER, DBA MIDWEST GRAIN CO., ED-
DIE DREWES, ROBERT W. DREWES REVOCABLE
TRUST, RITA K. DREWES REVOCABLE TRUST,
DAVID DREWES, INDIVIDUALLY AND, DBA
DREWES FARMS, INC., PATRICK NEWLON, DBA
NEWLON FARMS, INC., DAVID NEWLON, DBA D
DOUBLE N FARMS, INC., JASON TAYLOR, BRAD
TAYLOR, DBA H.B.J. FARMS, INC., LYLE HODDE,
DBA HODDE & SONS LIMITED PARTNERSHIP,
STEVE CUNNINGHAM, TRUSTEE OF THE DORIS
J. CUNNINGHAM AND STEVEN K. CUNNINGHAM
DECLARATION OF TRUST, GAIL CUNNINGHAM,
DBA CUNNINGHAM FARMS, INC., CHARLES
GARST, INDIVIDUALLY AND, DBA GARST FARMS,
INC., CONNIE GARST, DBA GARST FARMS, INC.,
RON SCHNEIDER, MARY SCHNEIDER, ET AL.,
Plaintiffs
v.
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2 IDEKER FARMS, INC. v. US
UNITED STATES,
Defendant-Appellant
______________________
2021-1849, 2021-1875
______________________
Appeals from the United States Court of Federal
Claims in No. 1:14-cv-00183-AOB, Judge Armando O.
Bonilla.
______________________
Decided: June 16, 2023
______________________
DONALD B. VERRILLI, JR., Munger, Tolles & Olson LLP,
Washington, DC, argued for plaintiffs-cross-appellants.
Also represented by ELAINE GOLDENBERG, DAHLIA MI-
GNOUNA; BENJAMIN JOSEPH HORWICH, San Francisco, CA;
SETH C. WRIGHT, Polsinelli, PC, Kansas City, MO.
BRIAN C. TOTH, Environment and Natural Resources
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellant. Also represented
by TODD KIM.
DAVID CHUNG, Crowell & Moring LLP, for amicus cu-
riae American Farm Bureau Federation. Also represented
by ELIZABETH DAWSON.
TREVOR CALDWELL BURRUS, Cato Institute, for amici cu-
riae Cato Institute, Mountain States Legal Foundation.
Also represented by JOSEPH BINGHAM, Mountain States Le-
gal Foundation, Lakewood, CO; ILYA SHAPIRO, Manhattan
Institute, New York, NY.
JEREMY CHARLES MARWELL, Vinson & Elkins LLP,
Washington, DC, for amicus curiae Chamber of Commerce
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IDEKER FARMS, INC. v. US 3
of the United States of America.
JAY R. CARSON, Wegman Hessler, Cleveland, OH, for
amicus curiae Buckeye Institute.
______________________
Before MOORE, Chief Judge, PROST and TARANTO, Circuit
Judges.
MOORE, Chief Judge.
Plaintiffs brought this action against the United States
under the Fifth Amendment seeking compensation for the
Army Corps of Engineers’ (Corps) alleged taking of their
farmlands and personal property by permanent, recurring
flooding. The Court of Federal Claims determined there
was a taking and entered judgment awarding compensa-
tion for the diminished value of the land but rejected dam-
ages claims for lost crops. The Government appeals the
trial court’s determination that a taking occurred. Plain-
tiffs cross-appeal the denial of compensation for lost crops.
For the reasons discussed below, we affirm in part, vacate
in part, and remand for proceedings consistent with this
opinion.
BACKGROUND
A. The Missouri River
The Missouri River (River) spans over 2,300 miles. It
begins in southwestern Montana and winds through North
Dakota, South Dakota, Iowa, Nebraska, Kansas, and Mis-
souri before emptying into the Mississippi River. The
River’s basin encompasses approximately one sixth of the
land mass of the continental United States. Until the mid-
dle of the twentieth century, the River was multi-chan-
neled and predominantly “wide and shallow,” ranging from
1,000 feet to almost six miles wide. J.A. 51,703.
In its natural state, the River experienced annual
flooding that constantly morphed its path and the
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4 IDEKER FARMS, INC. v. US
topography of its floodplain. The annual flooding pattern
consisted of April flooding caused by snowmelt on the
plains and local rainfall and June flooding caused by melt-
ing snowpack in the Rocky Mountains and rainfall at lower
elevations. J.A. 50,742. During these floods, the River
would extend across large portions of the floodplain up to
seventeen miles, connecting the primary channel to sec-
ondary channels. J.A. 50,741–42; J.A. 50,899. The flooding
caused erosion and deposited sediment as the flood waters
receded. J.A. 50,742. In a flood’s wake was an altered
floodplain, riverbank, and laterally relocated river chan-
nels. J.A. 50,742; J.A. 50,900. In this way, the flooding
cycles kept the River in a state of “dynamic equilibrium
with its floodplain” in which the River “migrated back and
forth” across its floodplain. J.A. 50,742; J.A. 50,886. In
sum, the River “was uncontrolled” and, as a result, ren-
dered large portions of the floodplain unproductive for de-
velopment, including agricultural use. J.A. 50,885; J.A.
51,052; J.A. 52,926.
In the 1940s, Congress passed several bills to improve
navigation and reduce flooding. The Flood Control Act
(FCA) of 1944 authorized the construction of a series of
dams to create a reservoir storage system designed to con-
tain excess water and reduce flooding. Pub. L. No. 78-534,
58 Stat. 887 (codified at 33 U.S.C § 701 et seq.); see South
Dakota v. Ubbelohde, 330 F.3d 1014, 1019 (8th Cir. 2003)
(summarizing history of FCA); see also ETSI Pipeline Pro-
ject v. Missouri, 484 U.S. 495, 499–505, 512–14 (1988)
(same). The dams, which make up the Missouri River
Mainstem Reservoir System (Mainstem System), were
completed in 1967. The FCA required the Corps to operate
the Mainstem System to promote a series of objectives, pri-
marily navigation and flood control, and secondarily fish
and wildlife conservation, among other things. See 58 Stat.
887–91; 33 U.S.C. § 701–1 (Declaration of Policy of FCA);
see ETSI, 484 U.S. at 512; Ubbelohde, 330 F.3d at 1019–20.
In 1945, Congress established the Bank Stabilization and
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IDEKER FARMS, INC. v. US 5
Navigation Project (BSNP). Under the BSNP, the Corps
altered the River’s water flow (including location, volume,
and rate) by constructing a “self-scouring” navigation chan-
nel and building dikes, levees, and revetments. J.A. 51,707.
These modifications eliminated secondary channels, nar-
rowed the River’s channel to as little as one third its natu-
ral width, reduced flooding, and stabilized the riverbanks.
As a result, the River was no longer dynamic with respect
to the floodplain. J.A. 51,707–08; J.A. 51,724. The Corps
completed the BSNP in 1980.
Consistent with the FCA, the Corps manages the Main-
stem System while accounting for the effects of BSNP
structures according to operations outlined in its 1979
Master Manual, which it used from 1979 until 2004. The
1979 Master Manual prioritized flood control first and rec-
reation and wildlife last. See Ubbelohde, 330 F.3d at 1028.
The Mainstem System and BSNP accomplished their
intended effect: what was previously economically unpro-
ductive floodplain became stable for development. J.A.
53,478 (Government 30(b)(6) witness stating goal was to
encourage development). Farmers and developers invested
in and improved the land free from annual flooding. J.A.
52,862 (Government report). By March 2005, 95 percent of
the River floodplain was developed for agricultural, urban,
and industrial uses. J.A. 52,862.
The Mainstem System and BSNP, however, also had
significant environmental side effects. See Ideker Farms,
Inc. v. United States, 136 Fed. Cl. 654, 664–66 (2018)
(Phase I). In particular, the self-scouring navigation chan-
nel altered downstream sediment deposits, while
riverbank stabilization and floodplain reduction elimi-
nated fish and bird habitats and interrupted wildlife breed-
ing cycles. Id. at 664–65. Realizing the environmental
impact of the Mainstem System and BSNP, in 1986, Con-
gress authorized the Corps to purchase land adjacent to the
River to recreate lost habitats. Id. at 665.
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6 IDEKER FARMS, INC. v. US
The Corps’ land reclamation was not its only mitigat-
ing action. The Fish and Wildlife Service (FWS) placed sev-
eral bird species and one fish species affected by the
Mainstem System and BSNP on the endangered species
list pursuant to the Endangered Species Act (ESA). Id. at
666 (citing 16 U.S.C. § 1531 et seq.). The ESA requires any
agency, including the Corps, to consult with FWS and con-
duct a biological assessment regarding the impact of its ac-
tivities on the survival or recovery of an endangered
species. 16 U.S.C. § 1536(a), (c). In response to the
agency’s assessment, FWS provides a biological opinion
(BiOp) of the agency’s impact on the endangered or threat-
ened species and provides “reasonable and prudent alter-
natives” for the agency to take if it determines the agency’s
intended action would violate the ESA. 16
U.S.C. § 1536(b)(3)(A). Unless the agency gets an exemp-
tion or is allowed to “take” a limited number of endangered
species, the agency must follow the BiOp or provide a rea-
sonable alternative to satisfy its obligations under the
ESA. 16 U.S.C. §§ 1536(a)(2), 1539; Phase I, 136 Fed. Cl.
at 666.
In the 1990s, the Corps and FWS began discussions
concerning proposed changes to the River designed to mit-
igate the environmental impact of the Mainstem System
and BSNP. J.A. 52,103–27. As part of those discussions,
FWS issued several BiOps, some of which called for restor-
ing the natural spring and summer river cycles and wildlife
habitats. Phase I, 136 Fed. Cl. at 666; see In re Operation
of Mo. River Sys. Litig., 421 F.3d 618, 626 (8th Cir. 2005).
The Corps did not make those changes because it deter-
mined FWS’ proposed actions would exacerbate flood risks
to land adjacent to the River, contrary to the Mainstem
System and BSNP’s primary objective. Phase I, 136 Fed.
Cl. at 666–67; see Mo. River Sys. Litig., 421 F.3d at 626. In
2002, the Corps faced several lawsuits—which were consol-
idated for multi-district litigation—from private parties
and states objecting to the Corps’ River management for
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IDEKER FARMS, INC. v. US 7
differing reasons, including its failure to implement the
changes in the 2000 BiOp. See In re Operation of the Mo.
River Sys. Litig., 363 F. Supp. 2d 1145, 1156–62 (D. Minn.
2004), aff’d in part, 421 F.3d 618. As a result of those law-
suits, the district court ordered the Corps to revise its 1979
Master Manual, which resulted in the 2004 Master Man-
ual. In re Operation of Mo. River Sys. Litig., 305 F. Supp.
2d 1096, 1099 (D. Minn. 2004).
The 2004 Master Manual brought many changes to the
Mainstem System and BSNP (2004 Changes). The BSNP
changes (River Changes) were intended to “restor[e] the
Missouri River to a more natural state.” Phase I, 136 Fed.
Cl. at 669. The Corps referred to this as the Missouri River
Recovery Program (MRRP). Id. The MRRP created more
shallow water habitats through modifications to the chan-
nel and dikes and reopened chutes that the Corps previ-
ously closed. Id. The Corps also made changes to the
Mainstem System management (System Changes). Unlike
the 1979 Master Manual that prioritized flood control over
wildlife, the 2004 Master Manual eliminated prioritization.
J.A. 50,117.
B. Procedural Background
This case arises out of the impacts of the 2004 Changes.
Plaintiffs are approximately 372 individuals and entities
who own and operate farms adjacent to the River in six
states. While the period from 2000–2006 was largely a
drought, periodic flooding returned in 2007, 2008, 2010,
2011, 2013, and 2014. Phase I, 136 Fed. Cl. at 670. Plain-
tiffs filed suit in 2014 in the Court of Federal Claims, alleg-
ing the 2004 Changes caused frequent and severe flooding
on Plaintiffs’ farms between 2007 and 2014 that amounted
to permanent, physical takings under the Fifth Amend-
ment.
The trial court split Plaintiffs’ action into two phases.
In Phase I, the trial court selected 44 bellwether Plaintiffs
to be the subject of its decision whether the 2004 Changes
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8 IDEKER FARMS, INC. v. US
caused the flooding, whether the flooding was the foresee-
able or predictable result of the 2004 Changes, and
whether the flooding was severe enough to be a taking. Id.
at 659, 672–73, 675, 678–79. The bellwether Plaintiffs pre-
sented evidence about their respective properties and the
flooding events that occurred on their lands between 2007
and 2014. Id. Expert witnesses and government officials
also testified about the effects of the 2004 Changes. Id.
The trial court found that 28 of the 44 bellwether Plaintiffs
established at least causation and foreseeability or causa-
tion, foreseeability, and adequate severity for some years
of flooding between 2007 and 2014. 1 Id. at 761–62. It dis-
missed the remaining 16 Plaintiffs. Id. at 763. It also
found the 2004 Changes did not cause flooding in 2011 for
any Plaintiff. Id. at 691–93.
The Government moved for reconsideration of the
Phase I opinion’s causation analysis in light of our inter-
vening decision in St. Bernard Parish Government v.
United States, 887 F.3d 1354, 1364 (Fed. Cir. 2018). See
Ideker Farms, Inc. v. United States, 142 Fed. Cl. 222 (2019)
(Reconsideration Decision). The trial court denied the mo-
tion, determining the exception to the causation standard
identified by St. Bernard Parish was applicable to this
case. Id. at 232.
The trial court then proceeded to Phase II, where it
tried damages and the Government’s defenses. To assess
these issues, the court selected the properties of three rep-
resentative Plaintiffs out of those who prevailed in Phase
I: the Adkins property, the Ideker Farms property, and the
Buffalo Hollow Farms property. Ideker Farms, Inc. v.
United States, 151 Fed. Cl. 560, 567 (2020) (Phase II).
1 The trial court found that some bellwether Plain-
tiffs had not yet established severity. Id. at 761–62. The
trial court reserved the remaining severity determinations
for Phase II. Id.Case: 21-1849 Document: 95 Page: 9 Filed: 06/16/2023
IDEKER FARMS, INC. v. US 9
Based on the trial court’s finding that the parties agreed it
was appropriate to apply the Arkansas Game & Fish II fac-
tors, it applied those factors to this case. Id. at 584, 593
n.23 (citing Arkansas Game & Fish Comm’n v. United
States, 568 U.S. 23 (2012) (Arkansas Game & Fish II)). The
factors, which apply to temporary, intermittent flooding,
are severity, duration, intent or foreseeability, character of
the land, and the owner’s reasonable, investment-backed
expectations. Arkansas Game & Fish II, 568 U.S. at 31–
39. Applying those factors, the trial court determined the
flooding was a taking of a permanent flowage easement,
Phase II, 151 Fed. Cl. at 584–93, that began in 2007 and
stabilized on December 31, 2014. Id. at 593–98. The trial
court collectively awarded the three representative Plain-
tiffs approximately $7,000,000 for property value diminu-
tion, $1,000,000 for repairing a levee, and prejudgment
interest. 2 Id. at 606, 608–10. The court ruled, however,
that Plaintiffs were not entitled to compensation for crops
destroyed during the stabilization period because they
were consequential damages. Id. at 606–08.
The Government appeals, and Plaintiffs cross-appeal,
rulings from both trial phases. Specifically, the Govern-
ment argues the Court of Federal Claims erroneously de-
termined the accrual date for Plaintiffs’ taking claims,
which resulted in the trial court’s improper exercise of ju-
risdiction after the statute of limitations on Plaintiffs’
claims had run. Appellant’s Opening Br. at 1–2. It also
argues the trial court erred in its application of the Arkan-
sas Game & Fish II factors, the legal standard for causa-
tion, and the availability of a relative benefits defense. Id.
at 2. Plaintiffs cross-appeal, arguing the trial court erred
in denying compensation for lost crops and finding the 2004
Changes did not cause the 2011 flooding. Resp. Br. and
2 The trial court stayed the remaining Plaintiffs’
cases until this appeal is resolved.
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10 IDEKER FARMS, INC. v. US
Cross-Appeal Br. at 1. We have jurisdiction under 28
U.S.C § 1295(a)(3).
DISCUSSION
I. GOVERNMENT’S APPEAL
A. Jurisdiction
As a threshold issue, the Government argues the Court
of Federal Claims lacked jurisdiction over Plaintiffs’
claims. See 28 U.S.C. § 2501. First, the Government chal-
lenges the Court of Federal Claims’ use of the stabilization
doctrine in this case because the effects of the flooding
manifested immediately. Second, the Government con-
tends the trial court clearly erred in finding that the claims
accrued in December 2014 rather than 2007. And because
Plaintiffs filed this action in 2014, more than six years after
the alleged 2007 accrual date, their claims are time-barred.
Plaintiffs respond that the trial court properly applied the
stabilization doctrine because the recurring flooding estab-
lishing the taking was a gradual process. They also argue
the trial court’s fact findings that the claims did not stabi-
lize until 2014 were not clearly erroneous and that the trial
court had jurisdiction. We agree with Plaintiffs that the
Court of Federal Claims had jurisdiction over this case.
A plaintiff must bring a claim in the Court of Federal
Claims “within six years after such claim first accrues.” 28
U.S.C. § 2501. Section 2501’s six-year limitation is juris-
dictional. John R. Sand & Gravel Co. v. United States, 457
F.3d 1345, 1355 (Fed. Cir. 2006) (“[W]e are unwilling to dis-
turb the well-settled law that section 2501 creates a juris-
dictional condition precedent for suit in the Court of
Federal Claims, which may not be waived by the parties.”),
aff’d, 552 U.S. 130 (2008). Plaintiffs bear the burden of es-
tablishing subject-matter jurisdiction. K-Con Bldg. Sys.,
Inc. v. United States, 778 F.3d 1000, 1004 (Fed. Cir. 2015).
Whether a court has subject-matter jurisdiction is a ques-
tion of law we review de novo with subsidiary fact findings
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IDEKER FARMS, INC. v. US 11
we review for clear error. Nw. La. Fish & Game Pres.
Comm’n v. United States, 446 F.3d 1285, 1289 (Fed. Cir.
2006); Ferreiro v. United States, 350 F.3d 1318, 1324 (Fed.
Cir. 2003). Under the clear error standard, we defer to the
trial court’s “findings of fact, unless there is a ‘definite and
firm conviction that a mistake has been made.’” Biogen
Int’l GMBH v. Mylan Pharms. Inc., 18 F.4th 1333, 1341
(Fed. Cir. 2021) (quoting Scanner Techs. Corp. v. ICOS Vi-
sion Sys. Corp. N.V., 528 F.3d 1365, 1374 (Fed. Cir. 2008)).
A claim accrues “when all the events have occurred
which fix the liability of the Government” and the plaintiff
“was or should have been aware” that the claim existed.
Goodrich v. United States, 434 F.3d 1329, 1333 (Fed. Cir.
2006) (quoting Hopland Band of Pomo Indians v. United
States, 855 F.2d 1573, 1577 (Fed. Cir. 1988)); Boling v.
United States, 220 F.3d 1365, 1370 (Fed. Cir. 2000). In
some cases, the events that give rise to liability may take
place over extended periods of time rather than at a dis-
crete instance. In such cases, the accrual date is deter-
mined according to the stabilization doctrine, which
accounts for the difficulty of ascertaining a precise time
“when the property is taken by a gradual physical process
rather than a discrete action undertaken by the Govern-
ment.” Mildenberger v. United States, 643 F.3d 938, 945
(Fed. Cir. 2011). Pursuant to this doctrine, where “the
damages from a taking only gradually emerge, e.g., as in
recurrent flooding, a litigant may postpone a suit for a tak-
ing until ‘the situation becomes stabilized’ and ‘the conse-
quences of inundation have so manifested themselves that
a final account may be struck.’” Nw. La. Fish, 446 F.3d at
1290–91 (citation omitted); see also Cooper v. United
States, 827 F.2d 762, 764 (Fed. Cir. 1987) (holding the “ex-
tent of the [tree damage due to flooding] was not ascertain-
able until 1984” even though trees began to show damage
in 1979); United States v. Dickinson, 331 U.S. 745, 749
(1947) (“The source of the entire claim—the overflow due
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12 IDEKER FARMS, INC. v. US
to rises in the level of the river—is not a single event; it is
continuous.”).
The Government argues the stabilization doctrine is in-
applicable here because the effects of the 2004 Changes
(i.e., the 2007 flood event itself) manifested “immediately,
not gradually,” unlike cases involving flooding leading to
erosion or uncontrollable aquatic plant growth. Appel-
lant’s Opening Br. at 58–59. This argument misses the
mark. What’s important to the accrual inquiry is not only
when the effects of the damage are known or should have
been known but also when “all events which fix liability
have occurred.” Nw. La. Fish, 446 F.3d at 1290 (quoting
Boling, 220 F.3d at 1370). “[I]t is the uncertainty sur-
rounding the permanent nature of the taking, and not the
uncertainty surrounding the ultimate extent of the[] dam-
age, that is critical in determining whether the situation
has stabilized.” Boling, 220 F.3d at 1372. Here, the events
fixing the Government’s liability are recurring floodings
over several years that rise to a taking of a permanent flow-
age easement on Plaintiffs’ lands. In the flooding context,
we rejected the argument that a “takings claim accrued im-
mediately upon the first inundation of the property be-
cause at that point, the frequency and permanency of the
flooding were still undeterminable.” Mildenberger, 643
F.3d at 945 (citing Dickinson, 331 U.S. at 749). If Plaintiffs
brought a tort claim for a single flood in 2007, then the stat-
ute of limitations may have run from the date of that single
flood event. But that is not the case here. 3 We conclude
3 The Government argues the trial court erroneously
treated the flooding as a continuous event instead of a sin-
gle flood in 2007 based on the decision in Barnes v. United
States. Appellant’s Opening Br. at 61–63 (citing 538 F.2d
865, 874 (Ct. Cl. 1976)). This argument rests on the same
erroneous analysis discussed below. See infra Section II.A.
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IDEKER FARMS, INC. v. US 13
that the Court of Federal Claims properly analyzed this ac-
cording to the stabilization doctrine.
The Government also challenges the Court of Federal
Claims’ stabilization findings, specifically that the events
fixing liability “continued past 2007, into 2014” and that
Plaintiffs reasonably did not know and should not have
known that the 2004 Changes caused the taking of a per-
manent easement. See Phase II, 151 Fed. Cl. at 595–96. It
also argues, even if the claims did not accrue in 2007, then
the trial court’s December 31, 2014 accrual date is unsup-
ported by the record. Because these findings are not clearly
erroneous, we reject the Government’s argument.
First, the Court of Federal Claims’ finding that the
claims did not stabilize in 2007 (i.e., that the events fixing
liability were ongoing) is supported by the court’s findings
that the modifications and their effects on the River were
ongoing and dynamic. The Government does not dispute
that the Corps’ modifications to the River continued into
2014. Phase I, 136 Fed. Cl. at 669 (“Corps studies explain
that as of 2014, the Corps had undertaken 1,697 dike
notching actions, 354 major modification actions, 63 dike
lowering actions, 36 dike extension actions, 39 side-chan-
nel chute actions, 20 revetment chute actions, 14 backwa-
ter actions, and 3 channel widening actions.”); Phase II,
151 Fed. Cl. at 595–96. Assuming these modifications
causally contributed to the flooding of Plaintiffs’ property,
which we address below, that the modifications continued
until at least 2014 supports the trial court’s finding that
the taking had not stabilized in 2007. The modifications to
the River’s water flow and its effects were ongoing, dy-
namic, and complex. Phase I, 136 Fed. Cl. at 702–05 (de-
scribing evidence of gradual changes to river topography
and other characteristics); Phase II, 151 Fed. Cl. at 596–
97; see, e.g., Nw. La. Fish, 446 F.3d at 1290 (“The harm in
this case [aquatic plant growth] . . . did not occur (i.e., was
not fixed) until well after” the water level reached maxi-
mum height.). This conclusion is supported by models
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14 IDEKER FARMS, INC. v. US
comparing the River’s water flow between 2005 and 2013.
Phase II, 151 Fed. Cl. at 595.
Second, the Government’s arguments that Plaintiffs
reasonably knew or should have known by 2007 that the
2004 Changes resulted in a taking of a permanent flowage
easement are inapt. See Appellant’s Opening Br. at 54, 58–
61. The effects of ESA-mandated changes were not imme-
diately apparent for purposes of stabilization. The nature
of the taking is a permanent flowage easement by recurring
flooding. It is reasonable that Plaintiffs did not know from
a single flood the existence, let alone the extent, of the pat-
tern of new and recurring flooding that would result in a
permanent taking. See Boling, 220 F.3d at 1370 (“[T]he
key date for accrual purposes is the date on which the
plaintiff’s land has been clearly and permanently taken.”);
Dickinson, 331 U.S. at 748–49 (holding statute of limita-
tion did not run from first flooding event). The trial court
credited testimony that Plaintiffs did not know the cause
of the flooding until years after 2007. Phase II, 151 Fed.
Cl. at 595. This testimony is supported by the fact that the
cause and effects of the recurring flooding are difficult to
ascertain “given the complex nature of the hydrology of the
River.” Id. Further, some Plaintiffs did not even experi-
ence flooding in 2007, and the Government does not explain
how those Plaintiffs’ claims could have accrued in 2007.
See Phase I, 136 Fed. Cl. at 736–37 (finding Corps’ actions
caused flooding in 2008 and 2010), 746–47 (finding Corps’
actions caused flooding in 2010 and 2013). The Govern-
ment also improperly relies on the foreseeability of the tak-
ing. The accrual inquiry examines whether Plaintiffs knew
or should have known the events fixing liability occurred,
not whether they could have predicted such events would
occur. Mildenberger, 643 F.3d at 946 (“[C]laimants are not
required to sue when it is still uncertain whether the grad-
ual process will result in a permanent taking.”).
Third, we reject the Government’s argument that the
trial court’s December 31, 2014 accrual date is arbitrary
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IDEKER FARMS, INC. v. US 15
because it is not related to any physical event. See Appel-
lant’s Opening Br. at 59–61. When a reasonable plaintiff
knew or should have known that his claim stabilized does
not need to correspond identically with the physical event
giving rise to liability. Instead, Northwest Louisiana Fish
makes clear the knowledge requirement is separate from
(though obviously related to) the requirement that the
events establishing liability have occurred. 4 446 F.3d at
1290 (“The correct standard recites that accrual occurs
when the harmed party knows or should have known of
their existence and all events which fix the government’s
alleged liability have occurred.” (emphasis added) (citation
and quotation marks omitted)). Here, Plaintiffs did not
learn of the full scope of the River and System Changes and
their effects on flooding until several years of recurring
flooding. At that point, Plaintiffs consulted experts to con-
firm their suspicions about the cause of the flooding and
filed suit within a few months of confirmation from those
experts. See Phase II, 151 Fed. Cl. at 595–96. This causa-
tion and damages knowledge derived from expert opinions
based on analysis of recurrent flooding during the period
from 2007 to 2014, which necessarily could not have been
provided in 2007, did not arise until 2014. The trial court’s
finding that Plaintiffs did not reasonably know that a com-
pensable taking had occurred until that date is thus not
clearly erroneous. In short, even though stabilization may
4 At least one other area of federal law similarly ba-
ses claim accrual on dates other than the physical events
they are tethered to, including considering the parties’ rea-
sonable efforts to seek expert technical advice. For exam-
ple, for an injured patient seeking damages for medical
malpractice under the Federal Tort Claim Act, the time for
a plaintiff to understand the claimed injury and seek med-
ical advice regarding its cause may be considered in ac-
crual. See United States v. Kubrick, 444 U.S. 111, 123
(1979).
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16 IDEKER FARMS, INC. v. US
occur before “damages are complete and fully calculable,”
Mildenberger, 643 F.2d at 946, the trial court’s accrual date
is not clearly erroneous given the complex nature of the
flooding, its effects here, the relevant time period, and the
time Plaintiffs needed to consult experts to establish cau-
sation. See Phase II, 151 Fed. Cl. at 596.
In sum, we hold the trial court properly applied the sta-
bilization doctrine to this case and did not clearly err in
finding that the taking had not accrued until December
2014. The stabilization doctrine is a “practical matter and
not a technical rule of law” designed for precisely these cir-
cumstances: where the causes and effects of a taking are
varied and may take time to manifest. Dickinson, 331 U.S.
at 749. We affirm the Court of Federal Claims’ exercise of
jurisdiction and its determinations that Plaintiffs’ claims
accrued December 31, 2014.
B. Takings Framework
The Fifth Amendment’s Takings Clause guarantees
that private property shall not be taken “for public use,
without just compensation.” U.S. CONST. amend. V, cl. 4.
If the government “physically acquires private property,”
then there is a physical taking to which a per se rule ap-
plies. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071
(2021). We assess per se takings according to a straightfor-
ward rule: “The government must pay for what it takes.”
Id. (citing Tahoe-Sierra Preservation Council, Inc. v. Tahoe
Regional Planning Agency, 535 U.S. 302, 322 (2002)). This
is true regardless of the size, invasiveness, or intermittent
nature of the physical occupation. See id. at 2075 (“[P]hys-
ical invasions constitute takings even if they are intermit-
tent as opposed to continuous.”); Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 438 (1982) (holding
that requiring landlords to install cables and cable boxes to
the outside of apartment buildings, while occupying rela-
tively little space, was a taking); United States v. Causby,
328 U.S. 256, 259 (1946) (holding taking occurred where
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IDEKER FARMS, INC. v. US 17
Army occupied airspace above plaintiff’s land for limited
periods of takeoff and landing).
In Arkansas Game & Fish II, the Supreme Court clari-
fied that temporary flooding can be a taking and estab-
lished a multi-factor test for determining if temporary
government induced flooding is a taking rather than a
mere trespass. 568 U.S. at 38–39. The trial court deter-
mined it “appropriate to apply the Arkansas Game & Fish
factors for the taking of a permanent flowage easement by
intermittent flooding” because, in its view, the parties
agreed it was appropriate to apply those factors to deter-
mine if the permanent intermittent flooding was a taking.
Phase II, 151 Fed. Cl. at 592–93 & n.23. Though it is not
clear that the parties agreed the multi-factor test an-
nounced in Arkansas Game & Fish II is the correct legal
framework for this permanent taking, 5 “[w]e are not bound
to accept, as controlling, stipulations as to questions of
law.” Sanford’s Est. v. Comm’r of Internal Revenue, 308
U.S. 39, 51 (1939) (citing Swift & Co. v. Hocking Valley
Railway Co., 243 U.S. 281, 289 (1917)). The proper legal
framework is a question of law the court may decide. 6
5 Plaintiffs assumed, without conceding, that all of
Arkansas Game & Fish II’s factors applied to permanent,
though intermittent, flooding simply as a “belt-and-sus-
penders” approach to its analysis, arguing it would prevail
even if those factors applied. ECF No. 690 at Tr. 3389:5–
3391:8; see Oral Arg. at 34:40–35:08 (Government stat-
ing the parties “have assumed [the factors] apply”), availa-
ble at https://oralarguments.cafc.uscourts.gov/default.asp
x?fl=21-1849_11012022.mp3.
6 To be clear, we find no factual error in the Court of
Federal Claims’ application of the Arkansas Game & Fish
II factors and determine Plaintiffs’ prevail under that
framework. There are, however, hundreds of remaining
plaintiffs whose cases have been stayed pending this
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18 IDEKER FARMS, INC. v. US
Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991)
(“When an issue or claim is properly before the court, the
court is not limited to the particular legal theories ad-
vanced by the parties, but retains the independent power
to identify and apply the proper construction of governing
law.”).
Arkansas Game & Fish II’s multi-factor test does not
determine whether a permanent taking has been effected
by government action that will foreseeably produce inter-
mittent invasions by flooding without identifiable end into
the future. “In this case, however, both parties agree that
if the court finds that a taking occurred, that taking is per-
manent.” Phase II, 151 Fed. Cl. at 585. Rather, such action
is a per se taking. Arkansas Game & Fish II involved tem-
porary intermittent flooding that occurred during a seven-
year period that ended when the government ceased its
flood-inducing actions. 568 U.S. at 26–28; see Arkansas
Game & Fish Comm’n v. United States, 736 F.3d 1364,
1366 (Fed. Cir. 2013) (Arkansas Game & Fish III) (decision
on remand from Supreme Court, explaining that the issue
was whether a “temporary taking” had occurred); Milton v.
United States, 36 F.4th 1154, 1163 (Fed. Cir. 2022) (citing
Arkansas Game approach only for “temporary taking,” not
for “permanent taking”). The Supreme Court held “simply
and only, that government-induced flooding temporary in
duration gains no automatic exemption from Takings
adjudication. In these circumstances, it makes good sense
for us to address the proper legal framework for perma-
nent, rather than temporary, intermittent flooding. See
PaineWebber, Inc. v. Cohen, 276 F.3d 197, 206 (6th Cir.
2001) (addressing issue on appeal where factual record did
not need development, the issue is one of law, and judicial
efficiency favored addressing the merits). Our failure to
address this issue would waste judicial resources and un-
necessarily burden the parties on remand.
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IDEKER FARMS, INC. v. US 19
Clause inspection.” 568 U.S. at 38. It added that when
determining whether a temporary flooding is a taking in-
stead of a trespass, courts should consider duration, fore-
seeability, character of the land, severity, and the
reasonable, investment-backed expectations of the prop-
erty holder. Id. at 38–39. The Court repeatedly noted that
permanent physical occupations, including intermittent
flooding, fall on the side of the “bright line[]” of a taking
and distinguished them from temporary invasions. Id. at
31–33 (collecting cases regarding “permanent physical oc-
cupation of property” and “intermittent but inevitably re-
curring overflows”); see id. at 38–39. That intermittent (as
opposed to continuous) yet permanently recurring occupa-
tions are per se takings is not a new concept—“There is no
difference of kind, but only of degree, between a permanent
condition of continual overflow by backwater and a perma-
nent liability to intermittent but inevitably recurring over-
flows; and, on principle, the right to compensation must
arise in the one case as in the other.” United States v.
Cress, 243 U.S. 316, 328 (1917); see Nollan v. California
Coastal Comm’n, 483 U.S. 825, 832 (1987) (stating appro-
priation of easement was a “permanent physical occupation
. . . where individuals are given a permanent and continu-
ous right to pass to and fro, . . . even though no particular
individual is permitted to station himself permanently
upon the premises” (emphasis added)).
The trial court accepted based on the parties’ stipula-
tion that the flooding in this case is permanent, not tempo-
rary, in nature. Phase II, 151 Fed. Cl. at 592–93. In short,
the Government has not ceased and does not plan to cease
flooding Plaintiffs’ lands. To the extent Arkansas Game &
Fish II’s narrow holding and reiteration of the well-estab-
lished principle that permanent yet intermittent physical
invasions are per se takings is not enough, the Supreme
Court’s decision in Cedar Point, issued after the trial court
decision in this case, makes that abundantly clear. It
stated that the “approach in Arkansas Game and Fish
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20 IDEKER FARMS, INC. v. US
Commission reflects nothing more than an application of
the traditional trespass-versus-takings distinction to the
unique considerations that accompany temporary flood-
ing.” 141 S. Ct. at 2078–79 (emphases added); id. at 2075
(“[P]hysical invasions constitute takings even if they are
intermittent as opposed to continuous.”). In contrast to the
temporary intermittent flooding at issue in Arkansas Game
& Fish II, Cedar Point explained that permanent intermit-
tent flooding is a physical taking subject to a per se rule.
Id. at 2071 (citing Cress, 243 U.S. at 327–28). The “govern-
ment likewise effects a physical taking when it occupies
property–say by recurrent flooding as a result of building a
dam. These sorts of physical appropriations constitute the
‘clearest sort of taking,’ and we assess them using a simple,
per se rule: The government must pay for what it takes.” 7
Id. (citations omitted).
This is not to say that an analysis of whether a perma-
nent taking or a trespass has occurred might not overlap in
part with the Arkansas Game & Fish II analysis of whether
a temporary taking or trespass occurred. But sometimes
distinguishing between takings and trespasses will be
much simpler. This is such a case. Where the government
takes a permanent right of access, akin to an easement in
gross, even if used only intermittently, it is unquestionably
an appropriation of the owner’s right to exclude. It is un-
disputed that the Corps has permanently burdened Plain-
tiffs’ land with a right to access their land with flood
waters. 8 Phase II, 151 Fed. Cl. at 585, 592–93, 596. And
7 Moreover, the inapplicability of the Arkansas
Game & Fish II factors to permanently recurring flooding
is supported by the fact that some factors, like duration,
are irrelevant in the permanent context.
8 To the extent stayed Plaintiffs’ have not estab-
lished that flooding will be permanently recurring, the trial
court shall determine that where necessary on remand.
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IDEKER FARMS, INC. v. US 21
as in Cedar Point, where California granted union workers
“a formal entitlement to physically invade” the farmers’
land, 141 S. Ct. at 2080, here the Government has perma-
nently caused recurring physical occupation of Plaintiffs’
land by floodwaters. The fact that the floodwaters come
and go during the year, i.e., are intermittent, does not ne-
gate the existence of a taking. Those considerations “bear
only on the amount of compensation.” Id. at 2074.
In cases that are closer calls than this one, courts must
continue to rely on Arkansas Game & Fish II and Ridge
Line. 568 U.S. at 38–39; 346 F.3d at 1355–57; see Moden
v. United States, 404 F.3d 1335, 1342 (Fed. Cir. 2005). In-
deed, while not rigid, the trespass-versus-taking inquiry fo-
cuses on whether government actions are “[i]solated
physical invasions, not undertaken pursuant to a granted
right of access, [which] are properly assessed as individual
torts rather than appropriations of a property right.” Ce-
dar Point, 141 S. Ct. at 2078. For example, up to three
flooding events “by themselves” do not qualify as (even a
temporary) taking. Nat’l By-Prod., Inc. v. United States,
405 F.2d 1256, 1273 (Ct. Cl. 1969) (collecting cases); see
Ridge Line, 346 F.3d at 1357 (“[I]solated invasions, such as
one or two floodings . . . do not make a taking . . . but re-
peated invasions of the same type have often been held to
result in an involuntary servitude.” (quoting Eyherabide v.
United States, 345 F.2d 565, 569 (Ct. Cl. 1965))); see also
Cary v. United States, 552 F.3d 1373, 1381 (Fed. Cir. 2009)
(collecting cases distinguishing permanent and intermit-
tent flooding from isolated incidents). In sum, this inquiry
essentially distinguishes a physical appropriation from an
“occupancy that is transient and relatively inconsequen-
tial,” such as a “truckdriver parking on someone’s vacant
land to eat lunch.” Hendler v. United States, 952 F.2d 1364,
1377 (Fed. Cir. 1991).
Accordingly, Arkansas Game & Fish II’s multi-factor
test does not apply to permanently recurring flooding. In-
stead, such flooding that foreseeably or intentionally
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22 IDEKER FARMS, INC. v. US
results from government action is a categorical physical
taking. See Ridge Line, 346 F.3d at 1355–56. To be clear,
we do not alter or amend our trespass-versus-takings juris-
prudence or question the applicability of Arkansas Game &
Fish II to temporary floodings. Cedar Point, 141 S. Ct. at
2078 (“[O]ur holding does nothing to efface the distinction
between trespass and takings. Isolated physical invasions,
not undertaken pursuant to a granted right of access, are
properly assessed as individual torts rather than appropri-
ations of a property right.”). Nor do we establish a hardline
rule for establishing what is a permanent or recurring
flooding. We simply reinforce the principle that the perma-
nent appropriation of a flowage easement is “clear enough”
to be on the side of a per se taking and not a trespass. See
Hendler, 952 F.2d at 1371.
C. Causation
The causation inquiry in this case requires us to assess
the proper temporal baseline for measuring whether the
2004 Changes caused the flooding on Plaintiffs’ properties.
The causation analysis depends on which “but for” world
the effects of the 2004 Changes are measured against: the
one predating the Mainstem System and BSNP under the
1944 FCA or the world with the Mainstem System and
BSNP as it existed between 1967 and 2004. The but for
world with the Mainstem System and BSNP, i.e., compar-
ing the circumstances after the 2004 Changes to the cir-
cumstances right before those changes, is the proper one
for assessing causation.
The Court of Federal Claims determined the proper in-
quiry for causation was to compare “the ‘but for’ world be-
fore the Corps began to undertake significant actions to
return the River to a more natural state in 2004 [with] the
current post-2004 world” that reflects the Corps’ 2004
Changes. Reconsideration Decision, 142 Fed. Cl. at 232.
Applying that baseline, the trial court found the 2004
Changes “led to more increased and more severe flooding
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IDEKER FARMS, INC. v. US 23
than would have occurred had these Changes not been
made.” Phase I, 136 Fed. Cl. at 697. Approximately one
month after the trial court rendered its Phase I decision,
we issued St. Bernard Parish. In St. Bernard Parish, we
reversed a trial court’s determination that the government
caused a taking by flooding because it had built a naviga-
tion channel that “create[d] a risk of flooding”—a determi-
nation we held to violate causation principles because
“subsequent government action designed to mitigate that
risk” was wholly “ignored” in the plaintiff’s proof of a tak-
ing. 887 F.3d at 1364 (emphasis added). Based on that
decision, the Government filed a motion for reconsidera-
tion, even though what the Government seeks to build into
the “but for” world here is not government flood-reducing
actions after the challenged government flood-increasing
action (as in St. Bernard Parish), but, instead, government
flood-reducing actions that were taken before––indeed, a
very long time before—the challenged government flood-in-
creasing actions. The trial court denied the motion, deter-
mining St. Bernard Parish did not undermine its causation
analysis, explaining that, under the legal authority that
governs this distinct situation, the proper baseline for the
causation analysis was the world just before the 2004
Changes, and not before the Mainstem System and BSNP
projects, because the 2004 Changes were “outside the con-
templation of the Corps” when the much earlier Mainstem
System and BSNP were planned. Reconsideration Deci-
sion, 142 Fed. Cl. at 232.
The Government argues the trial court’s baseline is
wrong, Appellant’s Opening Br. at 15–18, 26–34, because
it did not “consider both [flood] risk-increasing and [flood]
risk-decreasing government actions.” See St. Bernard Par-
ish, 887 F.3d at 1365. The Government argues the proper
analysis is to compare the current world (i.e., with the 2004
flood risk-increasing action) to the but for world where the
Corps never improved the River under the 1944 FCA (i.e.,
without the Mainstem System and BSNP). Plaintiffs
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24 IDEKER FARMS, INC. v. US
respond that the trial court properly compared the current
post-2004 River to that which existed right before the Gov-
ernment modified the Mainstem System and BSNP to re-
turn the River to its natural state. Resp. Br. and Cross-
Appeal Br. at 30–47. They argue St. Bernard Parish does
not apply because of the Hardwicke exception, which St.
Bernard Parish itself recognizes as addressing the situa-
tion where “[flood] risk-reducing government action pre-
ceded the [flood] risk-increasing action,” in which case “the
[flood] risk-reducing action would only be considered in as-
sessing causation if the risk-increasing action was ‘contem-
plated’ at the time of the [flood] risk-reducing action.” 887
F.3d at 1367 n.14 (quoting John B. Hardwicke Co. v. United
States, 467 F.2d 488, 490–91 (Ct. Cl. 1972)) (emphasis
added). And under the Hardwicke exception, itself well-
founded in Supreme Court authority, the trial court’s cau-
sation standard is correct, they argue, because the 2004
Changes would not have been contemplated when the FCA
was enacted in 1944. Resp. Br. and Cross-Appeal Br. at
47–49. Plaintiffs are correct that the Hardwicke exception
applies and that the Court of Federal Claims did not clearly
err in applying it to this case.
In determining whether the effects of the Mainstem
System and BSNP are excluded from assessing whether
the 2004 Changes caused flooding on Plaintiffs’ properties,
we examine whether a reasonable property owner at the
time the taking occurred would have understood the 2004
Changes to be “probably within the scope of the project [i.e.,
the 1944 FCA] from the time the Government was commit-
ted to” the project. See United States v. Miller, 317 U.S.
369, 377 (1943); Hardwicke, 467 F.2d at 490 (quoting
United States v. Reynolds, 397 U.S. 14, 18 (1970)). There
is no bright line rule for determining whether an action
was probably within the scope of the project. Reynolds, 397
U.S. at 21 (stating Miller’s “application to any particular
set of facts requires discriminating judgment”). Satisfying
the Miller rule does not require that the 2004 Changes
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IDEKER FARMS, INC. v. US 25
were explicitly part of the original plans for the 1944 FCA.
Id. The Government’s representations regarding the scope
of the project, the foreseeability of the action, and the
amount of time that has passed between the original ac-
tion, i.e., the 1944 FCA, and the action allegedly giving rise
to liability, i.e., the 2004 Changes, are also relevant. The
Fifth, Eighth, Ninth, Tenth, and Eleventh Circuits con-
sider some or all of these factors. See United States v. 62.17
Acres of Land, More or Less, in Jasper Cnty., 538 F.2d 670,
680 (5th Cir. 1976) (listing factors); United States v.
Crance, 341 F.2d 161, 165–66 (8th. Cir. 1965) (determining
government’s second alleged taking was within scope of
first taking because recreational areas adjacent to dam
were “contemplated . . . from [the project’s] inception” and
government did not make any representations to contrary);
United States v. Eastman, 528 F. Supp. 1177 (D. Oregon
1981), aff’d and opinion adopted, 714 F.2d 76 (9th Cir.
1983); United States v. 49.01 Acres of Land, More or Less,
Situated in Osage Cnty., 669 F.2d 1364, 1369 (10th Cir.
1982) (stating that “[l]ength of time between commence-
ment of a project and condemnation of property may be a
factor in determining reasonableness of a landowner’s be-
lief” that their property was not within scope of project);
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (adopting Fifth Circuit decisions issued prior to Sep-
tember 30, 1981).
The Government argues that under Hardwicke, if the
government provides flood protection to any land, then “an
eventual return to the pre-project status quo” must be con-
templated. Appellant’s Opening Br. at 31; Oral Arg. at
6:57–8:04. In other words, the Government argues it may
always reinundate land with flooding (or at least increase
the risk of flooding) as long as at some point in time it de-
creased the risk of flooding to that land. That position is
contrary to Miller. It fails to acknowledge that Miller (and
thus Hardwicke) provide that the 2004 changes, if uncon-
templated as within the scope of the 1944 FCA, may be
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26 IDEKER FARMS, INC. v. US
assessed for causation without regard to the effects of the
Mainstem System and BSNP. If the 2004 Changes that
caused flooding were not “within the scope of the [1944
FCA]” that provided flood protection, then the Government
is not immune from liability for flooding Plaintiffs’ land by
virtue of having constructed the Mainstem System and
BSNP in the first place. Miller, 317 U.S at 377; see Hard-
wicke, 467 F.2d at 393; 3 Nichols on Eminent Domain §
8A.01[11.B] (2022) (“Even though the condemnee’s land
may have experienced an appreciation in value as a result
of a proposed public improvement, the condemnee may be
able to recover the enhanced value if the condemnee can
establish that his or her property was outside the scope of
the government’s project at the time the government ini-
tially committed to the project.”). The Government’s pro-
posed rule also ignores the Fifth Amendment’s roots in
both principles of fairness and equity and doctrines of prop-
erty law. United States v. Virginia Elec. & Power Co., 365
U.S. 624, 631 (1961); United States v. Fuller, 409 U.S. 488,
490 (1973); see Arkansas Game & Fish II, 568 U.S. at 31(“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.” (quotation marks omitted)). In short, Miller and
Hardwicke teach that if the government provides value to
landowners by virtue of a first project, it cannot subse-
quently take property under the scope of a second project
not contemplated by the first project without providing just
compensation. The Court of Federal Claims did not err in
applying Hardwicke and Miller to this case.
Nor did the Court of Federal Claims clearly err in find-
ing that a reasonable property owner, at the time the Gov-
ernment took a permanent flowage easement, would have
understood the 2004 Changes, which were required to com-
ply with the ESA, to not have been contemplated as part of
the Mainstem System and BSNP flood-control projects
completed by 1967 pursuant to the 1944 FCA. The Corps’
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IDEKER FARMS, INC. v. US 27
primary objectives for its actions under the FCA were for
flood control, even to the detriment of other objectives. The
“United States expected people to be protected from flood-
ing along the River following the construction of the Main-
stem System and BSNP.” Phase II, 151 Fed. Cl. at 591.
Indeed, based on these flood-control expectations, agricul-
tural production increased and developers moved in.
J.A. 50,681 (National Academy of Sciences report); J.A.
52,886 (National Park Service report). Though wildlife and
recreation were considered as part of the flood control pro-
gram, before 2004, they were prioritized below flood con-
trol. See Ubbelohde, 330 F.3d at 1027.
Further, because the 2004 Changes were antithetical
to the original FCA priorities, it stands to reason the Corps,
and certainly property owners, would not have contem-
plated eliminating the flood control functions of the BSNP
by reverting its vast physical modifications. 9 Indeed, the
flooding caused by the 2004 Changes would not have oc-
curred but for the separate, intervening obligations Con-
gress enacted under the ESA. It was not until after
significant intervention by the FWS, which the Corps re-
sisted, that the Corps implemented the 2004 Changes. In
other words, under the 1944 FCA, the Corps never contem-
plated reconnecting the River to its floodplain after discon-
necting it. It follows a fortiori that a reasonable property
owner would not have expected the Corps to do so.
9 While the FCA gives the Corps discretion in the
management of the River, the Government does not dis-
pute flood control is the FCA’s and 1979 Master Manual’s
top priority while other considerations are secondary. See
Oral Arg. at 4:26–43. The Eighth Circuit has held the 1979
Master Manual to be binding on the Corps. Ubbelohde, 330
F.3d at 1028–30; see Mo. River Sys. Litig., 421 F.3d at 628
n.6. The Government provides no reason why we should
determine differently.
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28 IDEKER FARMS, INC. v. US
This case is analogous to United States v. 172.80 Acres
of Land, More or Less, Situated in Mercer Cnty., 350 F.2d
957 (3d Cir. 1965). In Mercer County, the Corps built a dam
and condemned nearby land for recreational and public fa-
cilities. Id. at 957. The government successfully negoti-
ated with the plaintiffs for a flowage easement over about
20 acres of their land and assured them those acres “were
the only parts of their land that would be needed for the
project.” Id. at 957–58. Later, the government reversed
course and condemned an additional 80 acres, which had
increased in value because of the dam and improvements.
Id. In holding that the plaintiffs were entitled to compen-
sation for the increased value attributable to the govern-
ment project, the court reasoned “a purchaser
contemplating the acquisition and private development of
[plaintiffs’ property] . . . after . . . initiation of the reservoir
project could reasonably anticipate that he would be able
to devote the land to its highest economic use, enjoying ad-
vantages inherent in the proximity of the nearby govern-
ment development without serious apprehension that his
land would soon be condemned.” Id. at 959. Similarly here,
Plaintiffs “could reasonably anticipate” that their lands,
which were free of annualized flooding for decades, would
not be intermittently flooded for purposes of wildlife pro-
tection based on the Government’s intervening and unre-
lated actions. See id.Contrary to the Government’s arguments on appeal,
St. Bernard Parish is distinguishable from this case. St.
Bernard Parish recognized that under Hardwicke, “if the
risk-reducing government action preceded the risk-increas-
ing action, the risk-reducing action would only be consid-
ered in assessing causation if the risk-increasing action
was ‘contemplated’ at the time of the risk-reducing action.”
887 F.3d at 1367 n.14 (quoting 467 F.2d at 490–91). The
2004 Changes that increased the risk of flooding were not
contemplated under the 1944 FCA that decreased the risk
of flooding. And unlike here, St. Bernard Parish involved
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IDEKER FARMS, INC. v. US 29
a first government action that increased flooding risk be-
fore a second government action reduced the risk of flood-
ing. Id. at 1367. The trial court properly held St. Bernard
Parish does not alter the causation analysis in this case.
The trial court properly evaluated the relevant government
actions. We therefore see no error in the trial court’s ruling
on this issue.
D. Relative Benefits
Finally, the parties dispute the applicability to this
case and the scope of the so-called “relative benefits” doc-
trine, which states: “if governmental activities inflict slight
damage upon land in one respect and actually confer great
benefits when measured in the whole, to compensate the
landowner further would be to grant him a special bounty.”
United States v. Sponenbarger, 308 U.S. 256, 266–67
(1939). After Phase I of the present case, the Government
moved to amend its answer to include a relative benefits
defense. See Ideker Farms, Inc. v. United States, 146 Fed.
Cl. 413, 414–15 (2020) (Motion to Amend Order). The trial
court denied the motion, reasoning, inter alia, that the
2004 Changes were for different purposes and not contem-
plated in the construction of the Mainstem System and
BSNP and that a relative benefits defense was thus una-
vailable. Id. at 421–23. The Government, mirroring its
causation argument (rejected above), contends that the rel-
ative benefits doctrine bars Plaintiffs’ claims because the
harm of the Corps’ 2004 Changes are outweighed by the
benefits of the Mainstem System and BSNP. See Appel-
lant’s Opening Br. at 42. Plaintiffs respond that the rela-
tive benefits doctrine is inapplicable because, inter alia, it
does not take into account the benefits conferred by all gov-
ernment actions. Resp. Br. and Cross-Appeal Br. at 49–52.
We agree with Plaintiffs.
The relative benefits doctrine “is closely related to, but
distinct from, the issue of causation.” Alford v. United
States, 961 F.3d 1380, 1383 (Fed. Cir. 2020). As with
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30 IDEKER FARMS, INC. v. US
causation, not “all government benefits must be considered
under the relative benefits doctrine.” Id. at 1386. Specifi-
cally, the relative benefits doctrine focuses on the benefits
and detriments of the government actions under the same
program. See Sponenbarger, 308 U.S. at 261–62, 266–67
(analyzing only benefits and detriments of 1928 actions
while excluding benefits and detriments of 1883 Eads
plan); see Jackson v. United States, 230 U.S. 1, 6–7 (1913)
(describing government’s flood protection history relevant
to Sponenbarger); see also Alford, 961 F.3d at 1384 (finding
decision to raise lake level and flood plaintiffs’ land caused
less damage than if Corps allowed levee system to be
breached); Bartz v. United States, 633 F.2d 571, 578 (Ct.
Cl. 1980) (analyzing harms of dam operation causing raised
water levels on adjacent farms against benefits of control
at all other periods of same dam); Accardi v. United States,
599 F.2d 423, 430 (Ct. Cl. 1979) (analyzing harm of river
flow with and without single dam in operation).
The 2004 Changes and the Mainstem System and
BSNP were different projects under different programs
spread out over decades and directed to different purposes.
Just as the Court in Sponenbarger analyzed the benefits
and detriments of the 1928 flood control without regard to
the benefits of the 1883 Eads plan, we conclude that the
benefits of the 1944 FCA should not be weighed against the
detriments of the 2004 Changes. See Sponenbarger, 308
U.S. at 261–62, 266–67. We also find this case to be criti-
cally different from Alford, where plaintiffs would have
“been far worse off” and “suffered more serious damage”
from flooding if the government had not engaged in the al-
leged taking of raising the lake’s water level to prevent a
levee breach. See 961 F.3d at 1385–86. Plaintiffs here did
not benefit in any way from the 2004 Changes. Moreover,
the 2004 Changes were directed to mitigating environmen-
tal and wildlife degradation while the Mainstem System
and BSNP were directed to mitigating flooding risks. See
id. at 1384 (“The relative benefits doctrine considers . . .
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IDEKER FARMS, INC. v. US 31
only government activities directed to mitigating the type
of problem that caused the damage.” (emphasis added)). In
this case, considering the Mainstem System and BSNP
along with the 2004 Changes would nullify our application
of Miller and Hardwicke because it would consider the ef-
fects of actions that were outside the scope of the project
and excluded for purposes of causation. We see no error in
the trial court’s application of the relative benefits doc-
trine.
The Court of Federal Claims had jurisdiction over this
case and properly applied the causation and relative bene-
fits framework. We also clarify that permanent recurring
floodings are per se takings. We therefore affirm the trial
court’s findings.
II. PLAINTIFFS’ CROSS-APPEAL
Plaintiffs cross-appeal, arguing the trial court erred in
two respects. First, they argue the Court of Federal Claims
improperly rejected Plaintiffs’ claims for crop damages.
Second, they argue the trial court clearly erred in finding
the Government’s actions did not cause the flooding of their
lands in 2011, which coincided with periods of extreme run-
off and flooding. We agree on both grounds.
A. Crop Damages
After finding the Corps caused recurring flooding on
Plaintiffs’ land, the trial court analyzed whether Plaintiffs’
claims for lost crops and other property were compensable.
Phase II, 151 Fed. Cl. at 606–608. It held “crop losses and
lost profits based on reduced yields, damage to structures,
damages to equipment, flood prevention expenses, and
flood reclamation expenses” are “consequential damages
that are an indirect result of the taking of the flowage ease-
ment” and therefore non-compensable. Id. at 607. The
trial court, however, awarded Plaintiff Ideker Farms “sev-
erance damages” (i.e., expenses for “mitigating damages
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32 IDEKER FARMS, INC. v. US
caused by the taking”) for costs of repairing a levee in 2010.
Id. at 608.
Plaintiffs argue their lost crops are compensable under
the Fifth Amendment because the diminution of property
value is a separate compensable interest from the destruc-
tion of their crops. Specifically, while the flowage easement
awarded by the trial court compensates Plaintiffs for the
taking caused by future flooding, it does not compensate
them for past damages. Resp. Br. and Cross-Appeal Br. at
72–74 (citing Arkansas Game & Fish III, 736 F.3d at 1370).
The Government responds that the trial court did not err
because crop losses occurring prior to a taking date result
from a trespass, not a taking. Appellant’s Reply Br. and
Cross-Appeal Resp. Br. at 42–46 (citing Barnes, 538 F.2d
at 874).
The Fifth Amendment protects private property “with-
out any distinction between different types.” Horne v. Dep’t
of Agric., 576 U.S. 350, 358–59 (2015) (citation omitted).
“The Government has a categorical duty to pay just com-
pensation when it takes your car, just as when it takes your
home.” Id. (citation omitted). Just compensation requires
putting the property owner “in as good a position pecuniar-
ily as if his property had not been taken.” Olson v. United
States, 292 U.S. 246, 255 (1934). As a result, courts must
determine whether the Government appropriated a prop-
erty interest and ensure the owner is compensated for that
interest in awarding damages. Damages are not limited to
the “time of the alleged taking” and include “past, present,
and prospective” damages. Ridge Line, 346 F.3d at 1359.
We measure “the fair market value of [the] property at the
time of the taking.” Yuba Nat. Res., Inc. v. United States,
904 F.2d 1577, 1581 (Fed. Cir. 1990) (alteration in original)
(citation omitted). The parties do not dispute that crops
and other equipment are property under the Fifth Amend-
ment. The parties dispute only whether crops and other
equipment damages are consequential damages.
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IDEKER FARMS, INC. v. US 33
Damages collateral to those caused by the govern-
ment’s physical appropriation of a property right are con-
sequential damages not within the scope of the Fifth
Amendment. See Mitchell v. United States, 267 U.S. 341,
345 (1925) (“If the business was destroyed, the destruction
was an unintended incident of the taking of land.”). The
line between direct and consequential damages is drawn
where the “owner’s relation . . . to the physical thing” ends
and “other collateral interests which may be incident to his
ownership” begin. United States v. Gen. Motors Corp., 323
U.S. 373, 378 (1945) (emphasis added). This includes, for
example, lost profits, loss of goodwill, and the cost of mov-
ing into a new facility. Id. The government is responsible
only for losses to the owner’s bundle of rights as distin-
guished from losses to other interests, including value gen-
erated from the owner’s use of property.
Plaintiffs’ crops and other personal property destroyed
by flooding are compensable under the Fifth Amendment.
The Court of Federal Claims determined damages “above
and beyond the value of the flowage easement” were an “in-
direct result of the taking of the flowage easement.” Phase
II, 151 Fed. Cl. at 607. The Government-induced flooding,
however, directly took both a permanent flowage easement
on Plaintiffs’ land and destroyed Plaintiffs’ crops. 10 In
10 Even though state law generally determines the
scope of the property interest, Cedar Point, 141 S. Ct. at
2075–76; cf. Tyler v. Hennepin Cnty., 143 S. Ct. 1369, 1375
(2023) (explaining that other sources of law may govern
what “property” is protected from takings), whether the
crops are considered a part of the value of the real estate
or separate personal property under state law, their value
must be paid to the owners. 2 Nichols on Eminent Domain
§ 5.03 (2022) (“It does not matter whether the annexations
were affixed by operation of nature, as in the case of trees,
herbage, water, mines, or minerals, or by artificial means,
Case: 21-1849 Document: 95 Page: 34 Filed: 06/16/2023
34 IDEKER FARMS, INC. v. US
other words, the loss of the Plaintiffs’ crops was not merely
an injury collateral to the loss of their land; though the
same government action caused both, it was a separate and
independent loss of compensable property in its own right.
Moreover, the value of crops physically appropriated is dis-
tinguishable from revenues Plaintiffs expected from un-
planted seeds that were not destroyed by the flooding. See
Oral Arg. at 32:57–33:10. Plaintiffs do not claim compen-
sation consequential to the taking of an easement—rather,
they seek compensation for the government’s appropria-
tion of two distinct property interests.
The cases the Government cites are inapposite. Barnes
does not control and conflicts with the Court of Federal
Claims’ findings. Barnes excluded from compensation crop
damages that occurred after the first government-induced
flood and before the stabilization date four years later, rea-
soning “crop damages sustained prior to the date of taking
. . . are the product of tortious invasions” and not a taking.
538 F.2d at 873–74. Barnes’ conclusion that damages oc-
curring during stabilization are not subject to taking liabil-
ity is premised on the legal rule that “[g]overnment-
induced flooding not proved to be inevitably recurring oc-
cupies the category of mere consequential injury, or tort.”
Id. at 870, 874 (citing Sanguinetti v. United States, 264
U.S. 146 (1924)). Arkansas Game & Fish II repudiated that
rule in reversing our holding that a taking occurs only
such as buildings, fences, or other structures. In both
cases, if they are acquired by eminent domain, compensa-
tion must be paid to the owner.”); see Horne, 576 U.S. at
355, 370 (holding farmers must be given “fair market
value” of raisins government regulation required the farm-
ers to set aside for “reserve raisins”); United States v.
131.68 Acres of Land, More or Less, Situated in St. James
Parish, 695 F.2d 872, 875–76 (5th Cir. 1983) (collecting
cases awarding crop damages).
Case: 21-1849 Document: 95 Page: 35 Filed: 06/16/2023
IDEKER FARMS, INC. v. US 35
when flooding is “a permanent or inevitably recurring con-
dition, rather than an inherently temporary situation.” 11
See Arkansas Game & Fish Comm’n v. United States, 637
F.3d 1366, 1378 (Fed. Cir. 2011) (Arkansas Game & Fish I)
(citing Barnes, 538 F.2d at 868–69, 872), rev’d and re-
manded, 568 U.S. 23. On remand in Arkansas Game &
Fish III, we awarded damages for trees destroyed by tem-
porary, intermittent government-induced floodings that oc-
curred over a seven-year period. 736 F.3d at 1370. There
is no material distinction between the destroyed crops here
and the damaged timber we held compensable in Arkansas
Game & Fish III. Id. at 1367–69. Indeed, the Court of Fed-
eral Claims determined the taking began “in 2007[] when
flooding attributable to” the Corps’ actions began. Phase
II, 151 Fed. Cl. at 597–98. Nor is there any meaningful
distinction between the crops destroyed by flooding and the
levee destroyed by the same flooding that the trial court
awarded damages for. 12
11 The Government argues Barnes is still good law be-
cause Arkansas Game & Fish II never mentioned Barnes
nor answered whether damages occurring during stabiliza-
tion are compensable. See Appellant’s Reply Br. and Cross-
Appeal Resp. Br. at 43. While the Government is correct
Arkansas Game & Fish II did not expressly cite Barnes, it
nevertheless fatally undermined Barnes’ rationale. 568
U.S. at 38 (stating limited holding was that temporary
flooding is not exempt from takings). Precedent is not iron-
clad until the Supreme Court explicitly says otherwise—“It
is established that a later panel can recognize that the
court’s earlier decision has been implicitly overruled as in-
consistent with intervening Supreme Court authority.”
Troy v. Samson Mfg. Corp., 758 F.3d 1322, 1326 (Fed. Cir.
2014) (emphasis added).
12 It is unclear whether any Plaintiff continues to pur-
sue losses to personal property other than crops. See Resp.
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36 IDEKER FARMS, INC. v. US
Similarly, the Government’s argument that awarding
crop damages separate from the permanent easement
would constitute non-compensable lost profits misappre-
hends the distinction between the crops and the land they
grow on. See Phase II, 151 Fed. Cl. at 607; Appellant’s Re-
ply Br. and Cross-Appeal Resp. Br. at 45. Just because lost
profits from operating a business are not compensable does
not mean that the underlying property of a business is not
compensable if destroyed or otherwise taken. The former,
but not the latter, is merely incidental to the taken prop-
erty.
Of course, that lost crops are compensable does not re-
solve the question of the quantum of damages. That ques-
tion depends upon the nature of the crops themselves. For
mature crops, like other forms of property, just compensa-
tion is simply the market value of the crops. Measuring
immature crops requires more work because it “not cus-
tomary to buy or sell growing crops.” United States v.
576,734 Acres of Land, More or Less, in Montgomery Cnty.,
143 F.2d 408, 409 (3d Cir. 1944). The lack of a customary
market for immature crops does not mean the Government
is absolved of its constitutional obligation to provide “just”
compensation. 13 See generally United States v.
Br. and Cross-Appeal Br. at 72 (mentioning “damages to
physical structures” in passing); Cross-Appeal Reply Br. at
21 (discussing damage to “farm structures”); Phase I, 136
Fed. Cl. at 747–49 (stating Plaintiff Ideker Farms’ grain
bins and irrigation equipment were destroyed or damaged).
To the extent any Plaintiff seeks such damages, the trial
court should apply the guidance discussed here.
13 The trial court suggested mature crops are compen-
sable while immature crops are not. Phase II, 151 Fed. Cl
at 608 n.30 (citing Barnes, 572 F.2d at 874). But, as ex-
plained, Barnes excluded immature crops because they
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IDEKER FARMS, INC. v. US 37
Commodities Trading Corp., 339 U.S. 121, 123 (1950) (“But
when market value has been too difficult to find, or when
its application would result in manifest injustice to owner
or public, courts have fashioned and applied other stand-
ards.”). Takings liability is not so easily avoided based on
such formalities. Cedar Point, 141 S. Ct. at 2076 (stating
state-law formalities do not preclude liability). On remand,
the trial court should calculate the value of immature crops
based on the “probable yield at harvest had the crop not
been destroyed” multiplied by its “market value at ma-
turity minus costs of further cultivation, harvesting, and
marketing” that the farmer did not incur. St. James Par-
ish, 695 F.2d at 875–76 (collecting cases); Daily v. United
States, 116 Ct. Cl. 723, 731 (1950); Montgomery Cnty., 143
F.2d at 409.
It was erroneous to exclude crop damages occurring be-
tween 2007 and 2014 from the damages calculation. We
therefore vacate the Court of Federal Claims’ determina-
tion that Plaintiffs’ claims for lost crop damages were not
compensable and remand for further fact finding consistent
with this opinion.
B. 2011 Flooding
Plaintiffs next argue the Court of Federal Claims erred
in finding the Government did not cause flood damages in
2011. In many respects, the flooding in 2011 was unique
compared to the flooding in other years. Most notably, the
volume of runoff in the River basin in 2011 was the most in
over a century. The trial court found that the Corps’ “Sys-
tem releases in 2011 were not part of the single purpose” of
protecting endangered species and that Plaintiffs therefore
could not establish the 2011 flooding was caused by the
2004 Master Manual’s release requirements. Phase I, 136
were destroyed prior to the date of taking, a fact not pre-
sent here. See 572 F.2d at 874.
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38 IDEKER FARMS, INC. v. US
Fed. Cl. at 678, 691, 692–93. Because the trial court clearly
erred in both findings, we vacate and remand for further
factfinding.
Regarding the court’s “single purpose” analysis, the
trial court found the 2011 releases had “nothing to do with
ESA compliance.” Id. at 691. This finding is premised on
the narrow view that the decisions to release water in 2011
were not based on benefiting endangered species. Id. at
691–92. Even if that were true, this does not consider the
effects of the 2004 Changes in the first place, which could
have impacted the severity of the flood damage in 2011.
The trial court also failed to consider, despite the record
rainfall, whether the Corps’ actions increased the severity
or duration of the 2011 flooding compared to what was at-
tributable to record rainfall. 14 Given the voluminous rec-
ord and the parties’ agreement that remand is appropriate
based on our affirmance of the other legal issues in this
case, we need not address the remaining arguments. See
Oral Arg. at 37:45–38:59, 43:44–44:14. We vacate and re-
mand.
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. For the reasons given above,
we affirm the Court of Federal Claims’ judgment with re-
spect to Plaintiffs’ takings claims. We vacate the trial
court’s denial of crop damages and its finding that the Gov-
ernment did not causally contribute to the 2011 flooding
14 The parties dispute whether Plaintiffs presented,
and thus preserved, an argument concerning the appor-
tionment of damages alleged to be attributable to the 2004
Changes as opposed to the excessive runoff in 2011. On
remand, the Court of Federal Claims should consider, on a
plaintiff-by-plaintiff basis, whether such an argument was
raised and preserved.
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IDEKER FARMS, INC. v. US 39
and remand for further consideration consistent with this
opinion.
AFFIRMED IN PART, VACATED IN PART, AND RE-
MANDED
COSTS
Costs awarded to Plaintiffs-Cross-Appellants.