an extraordinary natural disaster that produced the largest storm surge in our nation's history the resulting flooding was a terrible tragedy but it was not a system in the taking for which the public was just compensation and we think that's true for a number of reasons that we've laid out in our briefs if i could this morning i'd like to focus on two fundamental legal points each of which independently requires reversal of the unprecedented judgment finding takings liability here the first point is that the plaintiffs have now made clear that they are not claiming that the government did something that subjected their properties to flooding that would not have occurred under natural conditions instead as the plaintiffs had made clear in their brief before this court their claim is that if the government had not constructed the mr go shipping channel in the one nine hundred fifty s in the one nine hundred sixty s the levees that the government leader constructed a long reach to all of the mr go channel would have been sufficient to withstand hurricane katrina and prevent the flooding of their properties that actually occurred even if the court of federal claims had made such a finding and even if such a finding could be supported by the record that would not give rise to a viable takings claim because there is no fifth amendment property right to a particular level of flood protection from federal le in the murder a work different projects so somehow you can ignore the levee levees as a result of that could you address those two are humans sure and i'd like to start with the second one if i could the summer project point because i don't think the separate projects argument other cases you're asking whether you're taking for granted that the government has taken property or caused some flooding of property in spawn and are the theory was there was a flood control project that most of the time prevented flooding of the property but sometimes caused flooding of the property that wouldn't have happened otherwise and the question was on balance has this left the property sufficiently better off that we're not going to call it a taking even though it conceded they sometimes causes flooding that wouldn't otherwise happen and this is in some ways an antecedent question here the question is was that any action by the government the but for cause of the invasion of the flooding at all and in those circumstances we don't think it makes sense to require that it be the same property here if the government had done nothing hadn't built the levees and hadn't constructed mr goh it's undisputed and so that this goes st bernard holder would have flooded to essentially the same level as actually occurred during hurricane katrina and so when you have those circumstance we don't think of the spawn barber requirement applies but even if you didn't agree with that even if you were going to allow us to count the levees only if they were part of the same project in some sense as mr crow i do think they qualify or they would meet any such requirement and the reason is because the levees are where they are only because of mr go when the government mr goh it's a long shipping channel and reach to the part of the shipping channel that we're talking about now was spread through the martian the dredging was done the crummy core piled the material that had been dredge alongside the bank and created a land where previously there had only been marsh the land was about six feet above the marsh as a result of that writing and that the on which the levees that issue here would later built it was only possible to build them there because mr goh had been bred there to create the land to build the lettuce and then of course the levees themselves were also built out of material that had been dredged from the mr battle so i think it's very hard to say that those levees ought to be separated out and treated as something separate and apart from the mr go project and if you agree with that and if you agree with us that either because the spine bar type same project apartment doesn't apply or that these two very closely related projects are built in the same area one right after another and so closely integrated physically counted for the same purposes i think that leads to the conclusion that there was no taking here because it leads to the conclusion that the government's actions overall plaintiffs are no worse off than they would have been if the government had done nothing and i think it would be particularly odd to find it taking under the circumstances like you have here where the claim is that the government did something first to build the channel in the  hundred sixty s that caused levees that the government later built years later in the sixty's and seventy's to provide less protection than they otherwise would have i think the only way that you could get to the conclusion that that sort of situation gives rise to a taking is by finding that there is some sort of property right in a greater level of protection from federal level yes but there's not if you didn't think it's recognized that there is no fifth amendment property right in a certain level of federal flood protection and spawn of art itself in another point the court said that the fifth amendment does not require the government to insure against all evils from flooding so i think that's the first reason that i wanted to get to it as to why takings liability is inappropriate here even on plaintiffs view of the facts the second point that i also want to emphasize this morning comes from this court's decision in ridgeline which crystallized a long line of precedent saying that an injury to property caused by the government can give rise to takings liability instead of just a potential tort claim only if among other things the government either intended invasion of the property or the invasion that resulted was the direct natural or probable result of an authorized government action and here again even accepting plaintiff's view of the facts that the mr go alternately through a series of processes unfolding over decades increased the risk of storm surge in the new orleans area the direct cause of the flooding of their properties was an extraordinary hurricane of unprecedented dimensions it was not the government's construction of a shipping channel some forty years earlier and i think the plaintiff's response to that argument for the ridgeline prong want argument is to invite the court to dilute that direct natural or probable standard to be something much less than what it is and i think you also see this in the court of federal also because it was foreseeable to the government at some point as late as two thousand and four even the court of federal claims said that the mr go could give rise to increased risks of flooding during times of hurricanes and other severe storms and what i want to emphasize is that it's possible to describe that is foreseeability but to describe that as forsee ability is to use foreseeability in a classic negligence sense is to describe the government creating an increased risk is the sort of thing that may give rise to a tort claim on a negligence theory but it's never been understood to give rise to potential takings liability and that's something that this court emphasized in ridgeline itself it's something that this court's predecessor of the court of  constitutes a taking those sorts of accidental or negligent injuries inflicted by the government give rise to incidental or consequential damages that might give rise to a tort claim but they aren't the sort of direct natural or probable result of authorized action that is treated as a sufficient substitute for actual intent to get to effectuate a taking so as to satisfy ridgelines two part test and so we think it's very important that the court preserve the distinction that its decisions have always preserved between tort present here where you have both an extremely attenuated causal chain plaintiffs are complaining about the effects of a shipping channel built more than four decades before the flooding that occurred during hurricane katrina and their argument is that that channel caused a variety of natural processes are aggravated a variety of natural processes including the incursion of salinity the change of habitat the widening of the channel things that unfolded over decades and that in combination produced an increased risk and then at the end of that very attenuated causal chain which is already far more atten ated than anything that's previously been found to give rise to a taking you have the extraordinary natural event of a hurricane of unprecedented dimensions that would even by itself be the sort of intervening cause that this court described and carry decision something that breaks the c circuit didn't have occasion to reach that question because they decided that that action was in united states a discretionary function for which the government was not liable but yes to answer your complete answer to the first question our view is that whether or not there would be tort liability  issue before as in spondon barter the point can be offered and the court can conclude that the project itself did not put the plaintiffs any worse condition than they would have been so if there had submission and the evidence in the record before you is convinced two different trial court judges federal court judges that but for the mr go the levees would have held or at least would have held long enough to prevent devastating would have been no flooding certainly there would have been flooding if the government had not had not constructed levees but our point is that the foreseeable cause of the levees breaching the cause itself was the government itself and the construction expansion and maintenance and operation of the mystery go but without that there's no evidence that this level of damage would have been foreseeable if that the government essentially the government was wasn't required in the first place to build the levees and that's certainly true and they say that big any faith here of their levees to contain the flood waters that they were intended to two different federal trial court judges it found it was the foreseeable natural consequence of the series of events that the government itself initiated when it construct penalise one group keep in mind there were hundreds of thousands of people whose property was was destroyed or seriously damaged by hurricane katrina we represent a small portion of those people and the reason that they are different from everybody else in new orleans and by the way the levees fail peavy protects much more than just the st bernard colder but the reason that th they have a claim and no one else in new orleans at least in our our judgment has a claim other than perhaps the tort claim that was brought on behalf of all of them is that they can point to a cause of their flooding of their damage that that the government itself is responsible in many respects this is really quite a malaga storage on in ridgeline the government bought a piece of property that in its undeveloped state was uphill from the plane just property and it caused storm runoff in that condition as well but you do you agree that if you're going to hold the government liable for the set in and train the various elements that ultimately brought about the the damage that was caused by the flooding caused by the government then it is foreseeable but again in arkansas game the court didn't say that that the that the damage to the to the plaintiffs property that is the trees that ultimately were killed  beginning to the fore it said that by two thousand and four this these natural consequences following in their natural order had reached the point where flooding would be imminent where it was a quote ticking time bomb think it has to be foreseeable well your honor i think it has to be foreseeable at perhaps at least in time for the government to take the action that is necessary to neutralize the flooding threat that they have created and you are so it would be foreseeable certainly no no later than one nine hundred eighty eight when the government itself and the court quoted from this internal documents but when the government itself studied the mystery go and became alarmed by the rate at which the banks were eroding from its riginal six hundred fifty feet at that time and in one thousand nine hundred eight all the way to fifteen hundred feet by the other one is allowing the banks to run i don't know whether there's any other from an act of the government but those are two separate things i'm what they suggest that they would be liable for decision at that time not to armor the banks and knew that those banks would be rather just as they did at the rate of fifteen feet per year until it became and some places a three thousand foot wide hundred eighty eight your honor this is what the the corps of engineers understood in their own internal study they said continued erosion threatens to produce large breaches in the rapidly dwindling marsh buffer between the navigation channel and the open waters of the lake morning once the mr goes bank is breached development to the southwest would be exposed to direct hurricane attacks from late morning so certainly no later than that it did take which created the flooding danger or the flooding danger preexists that it was from lake borgne and winds pushing lake warn against those levees what the government did was exacerbate that threat add great b to that threat just as in spawn and barker the court said the government did not add to the flooding danger that create existed it's project here the government added this court have often said where the governments action initiated a series of events all came their natural order by which the landowner was deprived of beneficial use a portion of its land a taking can be found this this was the government in going to construction in the in the expansion in its maintenance and and in its operation of the mr go actually witnessed exactly what it predicted would take that was up to three thousand foot wide and and became your honor a very clear and present danger a ticking time bomb in the words of the of the trial court for hurricane flooding it added enormously to that excuse me to to the danger that the people in the st bernard polgar as distinct from the hundreds of thousands of people in new orleans who can't lorry blame the government for we the cause of of of their flooding damage whether it be levied breaches or anything else that is what makes this case the case of the extraordinary circumstances that the supreme court in arkansas game said this court has to have a judge in the particular circumstances of each case because the words of that holding foreclose the argument that my friend from the government has offered judge dyke to the spawn and burger point because his point is look as as i  quoted from his briefing at page four of his reply i agree when ever a levee breaches that we've put up we can't be held liable if you would have been hurt just as much if we hadn't put the levee up in the first place no matter what the cost that's that's their argument your honor and that can't survive the holding that you just read yechury because that is a court again any time they construct a levee they can't be liable even if they intentionally knock the levee down for the purpose of flooding everybody in the polder that's their argument or worse and your honor i accept that and they made things worse two federal district court judges have found on the record that's before you now that they made things worse worse whatsoever not the combination your honor that's true and if this court expands stone and barbour to say that a levy combined with anything else no matter what it is cannot visit my ability on the federal government a face to face sell that argument then yes i'd lose my case but your honor could consider the implications of that consider the implications again no matter what the cause they say no matter what role the government had in the in the failure of the proposition what if what if the government in order to shelter naval vessels and this was a an example used by judge devalued in the in the tort case robinson what if they had put naval vessels up to mr themselves would breach and devastating flooding would take place in the polder below you know that we would submit to you that would if all the other factors identified in arkansas game are satisfied risk of hurricane damage so we're going to mitigate that by building levees really that under those circumstances you have to consider the impact of the levee here on or i do but i also think that that ridge line the government took a preexisting storm run off bloodless and they greatly increased it by putting up a postal facility with impervious surfaces and increase that runoff risk but but they failed to take adequate measures adequate measures they did take some measures a drainage well and you know if i may complete my answer i see my time is up i may complete my answer and they put up a drain it's well they even built a check dam on the plaintiff's property but this court found that that did not protect them from a takings liability they had to do more but by failing to create retention ponds to to negate the flooding damage that the government itself that created this court said the government had basically shifted its costs of flood control for flooding dangers that it was responsible to pay for on to the plaintiffs and that created a flow government has itself either created or exacerbated as in ridgeline and then say we can't be held liable for anything that happens after that thank you thank you are just a few points are vital and i'd like to start on the levees point that judge that you were discussing with my friend and to start with the ridge flying analogy that he tried to draw because i think it's very instructive in ridgeline the government erected a postal facility above the plaintiff's property and by building impervious services surfaces and building drainage sites that just charged on to the downhill property caused floods that wouldn't have occurred if the government hadn't done anything at all this situation is just the opposite everyone setting aside all of those factual issues and taking what my friend described as correct what he said is that in one thousand nine hundred eight after these risks assertively became apparent the core it failed to do things to remediate the risks like armor the banks to prevent further erosion or closed the channel and the problem with that theory is that those sorts of discretionary interactions cannot be the basis for takings liability and that's something that my friend himself recognized on page thirty seven of the read brief he says contrary to the government the focus of the tort suit and robinson in robinson and judge have all ruled early on before the trial happened that the government could be held liable for the original construction of the mr go and so that tort suit focused entirely on whether the government was negligent in failing to armor banks once it became apparent assertively according to the plaintiffs that erosion was causing risks of flooding and judge gave all held that that was sufficient to make out a negligence claim we disagreed in the fifth circuit ultimately resolved the case on immunity grounds but the point is that you were to accept a judge of all findings as correct they wouldn't support a finding of takings liability here because they are findings that the government's negligent in action it's negligent failure to take action caused injury not findings that the a lawful life that's correct and authorized actually exactly because the idea is that the government has appropriated or taken an interest in property that then belongs to the united states and that's the reason why it has to be authorized that's the reason why it can't be negligence and so whatever the merits theory and robinson it doesn't give rise to take these liability and i think an arkansas game actually this is another discussion judge strike that you had with my friend and the question was about what point in time does have to be foreseeable to the government that the invasion is going to occur and our position just parent that it is that even if you got to foreseeability that wouldn't be enough in carry this court said that even if an injury is foreseeable you still have to prove causation and you can still have an intervening event there entre lighting a fire here extraordinary hurricane that breaks the chain of causation and removes takings liability even for forseeable injuries but setting that aside and just focusing on the sea ability for now the lesson from arkansas game to remain a decision is that at the time that the government takes some authorized action it has to be foreseeable to the government that that action is going to cause the invasion of property that ultimately occurs and so this court was very careful and this is on page thirteen seventy three of the remaining decision in arkansas game to say that even though there were a series of discharges intentional discharges from the dam that were tissue there in the regular operation of the danann every year the court pointed out and found that before the cork made the discharges in one thousand nine hundred six that caused the loss of the timber that was an issue there if the court had stopped in one thousand nine hundred six the previous to charges would have been enough to cause the loss of the temper and before the court took the action the discharge that ultimately caused the loss of property this court pointed out that it was on notice that the plaintiff had actually warned and complain that the discharges if they continued were going to damage th that's the sort of connection that you have to have at a minimum before you can have taking side to lety and you don't have that here because it's just like when a doubt my friends are relying on a combination of many different factors some of which were set in motion by the salinity issue irrevocably plaintiffs properties were going to be injured and that's in part and this i think it gets to another point that my friend raised he pointed out that in one nine hundred fifty seven the st bernard parish government noted that the construction of the mr go would increase the risk of storm surge and that's true and that the document that he pointed to appears at pages one one one three three six the joint appendix but i think the critical point to make there is that when that document was written it was before the levees were constructed and so if you read on the next paragraph of that document says that what the st bernard parish needs are levees like the ones that the city of new orleans is building and later the government actually did construct those levees so come back to the point that i started with this is not like ridge line where the government causes flooding that would have happened if the government had done nothing if the government had done nothing the flooding would have been just as bad if the storm had struck if the government built mr go and the storm had struck the place of properties that still would have flooded and it would be very odd i think to say that because after building mr goh the government built levees that provided a great deal of protection to offset flood damage in a lot of cases but that wasn't quite sufficient to offset the storm of hurricane katrina that act  that the government didn't have to build gives rise to a take so this is miles away from the circumstance where the government has build levees and then intentionally knocks them down or any of the other hypotheticals that my friend described this is a circumstance where the takings claim is that because the government did something in the lot of reliance on the supreme court's decision in arkansas fish and game i think if you're on exactly the wrong lesson from that decision there the supreme court rejected a categorical rule that temporary flooding can never give rise to a taking but in doing that it was careful remand that not every incident of government induced flooding gives rise to a takings claim instead it reminded so it's said that it remains incumbent upon courts to continue to carefully apply the rule set forth in it