the court does this is john our best for the united states court of federal claims to help the united states liable for a temporary physical taking a plaintiff properties by flooding and awarded plaintiffs compensation independent reasons st at trial plaintiffs did not even attempt to carry the burden of proving causation as required by st bernard parish a decision ignored by the c s c as in st bernard parish the court here can and should reverse on this grounds alone and need not reach the government's other grounds for reversal number two if the court reaches the issue the could you explain to me why you think intentionality is completely irrelevant in this context i mean isn't it easier to know what caused something when it was done intentionally rather than when it was done on i amounted to a taking but in terms of causation the intentionality is not a relevant consideration what is relevant is that the plaintiffs had to present evidence comparing the damage to their properties that actually occurred in two thousand and eleven when the core raised the level of eagle lake to ninety feet with the damage that would have occurred if there had been no government action at all i think the most relevant consideration is that they did not even attempt to prove causation and even though it wasn't the government how about a hypothetical question could there be any way for them to prove y your honor they would it would the plaintiff would need to make the comparison but i've just described and then to show that the damage that actually occurred was greater than the damage that would have occurred if the government had taken no action at all so that would be a hypothetical case where the plaintiffs could prove causation but i suspect on these facts do you think there's any way that you know i'm just trying to find now under your legal theory on these facts is it your position that that they could never prove causation not just that they didn't offer enough evidence but there is no way they could prove it on  on or yes on the facts of this case that there was no causation and the government didn't need to disprove causation but the government did put in evidence applying the st bernard parish causation principles and the government's undisputed trial evidence showed that if the court had not built a levee near eagle lake the water level in eagle lake would have reached one hundred and seven point five feet and two thousand and eleven or seventeen and a half feet higher than the ninety foot level that actually occurred when the corps raised the level of eagle lake the parties also stipulated that trial but the plaintiffs cost of repairs which was the only damages they sought would have been significantly higher if the levee had breach  why is causation really an issue here i mean it seems to me clear that the immediate cause is you forthrightly knowledge in your brief of the damage to the peers in the docks of eagle lake was the raising of the level of the water in the lake ok there's no question that that's what caused the damage here and doesn't that make this case different from st bernard parish where the question of damage was open there the question was did the actions of the corps of engineers with respect to the murder go in g cause the damage that came from the flooding of hurricane katrina so why is causation an issue here your honor it's it's an issue because under st bernard parish the relevant causation question is what would have happened if the corps had not acted at all and here we are we believe that that requires looking at what would have happened if the corps had not built the segment of the levee near eagle lake and have not built money by you control structure but looking at it isn't it really though it seems to me a question of  the core cause of the damage but in doing so the corps prevented much further damage a catastrophic breach of the levee needed your best argument look yes we caused the damage to the peers in the docks but the relative benefits doctrine applies because if we hadn't done that there would have been a breach of the levee as everyone agreed and there would have been much greater damage is that your best argument why get into all this discussion about what was built you know years before an oil well your honor the government w difference between the causation doctrine and relative benefits in our context here is that one would look at a broader temporal time period for the relative benefits analysis in other words over a period of time  purposes of determining relative benefit for each property no your honor there would be no need for a man because as you point out in the brief the evidence is the government's evidence the trial was under about but we haven't had that we have an actual finding by the claims court don't we that they were better off than they would have been if the lake level hadn't been increased in the levy had been breached yes honor that you mean what you make much of the idea that this was an intentional act by the government and you seek to distinguish various cases on that ground but isn't it true that every government doesn't fall into the st bernard parish time the equation that the government tries to push it into every taking there has to be a public necessity there has to also be a good that comes from every taking right and that's one place that it gets a little bit more difficult of the taking is to the benefit is for the good of the public and the one person is having to pay one hundred percent of the price and that's exactly what happened in this case right const pay for the benefit of  good situation in which the plaintiffs themselves didn't benefit i mean suppose the only damage in the event of a levee break would have been to the plaint s would you have a case here i do you know i just smith and i had a similar conversation in closing it be a completely different case and i don't know that i would but what i know here is that you have to somehow balance that concept that i'm paying one hundred percent of the price for the public good which is a taking with that idea that i'm receiving some benefit of the levee it but it begs the question if the only question is you're receiving a benefit it doesn't really follow the causation analysis that calls on the necessity and the relative benefits doctrine analysis is where that falls that doesn't fall in the cultivation piece and so if you ask that question under the say the necessity doctrine to lose that anyway that was a kind of a necessity doctrine type offenses that would be really and exceptions to the taking stockton and i want to make that clear so this is a taking and what's the taking occurs the government says wait a minute it would happen to you anyway so what do you really complaining about you get relatives benefits doctrine or this necessity defense type idea one thing that that that ties to is every levee built falls into this category doesn't it kind of what you're say and in the sense that if you build a levee as to start water from coming over someone's property right so if that's the only question then everything the government has the free right to build a levee anywhere they want on anyone's property and stop water from flooding it and say wait a minute you're receiving a benefit because i'm stopping you from flooding and i'm going to take half your land for the levee and that's not the case you have the payroll of the navy mr olson excuse me if if the government takes land to construct a levee there would be an imminent domain situation and there would be there would be compensation there but let me ask you i think let me ask you one question assume for the moment that the government had not raised the level of the water in eagle lake ok and assume further that the levee had breached and there has been terrible damage to your clients and others in that situation do you think you would have had a cause of action in toward the cause of action being look corps of engineers you should have raised the level of the water in eagle lake if you had the levee wouldn't have breached no i don't think now i don't think you'd have that claim i think the courts have been clear about the ability to kind of make the court do something versus when they actually do it taking those are two different things i was careful in my loft to actually own the library you're not you're not asserting a tort but i'm saying do you think be a cause of action for core negligence if the corps had failed to raise the level of the lake and as a result the levee had breached i know it's not a claim but would there been a tort claim for negligence on the part of the corps i don't think so i don't think that would be successful your honor now i  had i understand it are you what you're saying am i correct is that you don't think the government can pick and choose who is sacrificed for the greater good is that right that is the best kind of a taking yes right and but it's true that not only would others have been sacrificed but that these particular property owners would not i'm not running from that fact the problem is if that's true then what if that's the question then you're giving the government the right at any moment to say well if you're going to get a benefit from this i get to do the taking it's the living in the eminent domain even happened why is it paid for why is the expansion of one of my favorite facts in this is that the expansion the permanent fix the raising of the lake was a temporary fix the permanent fix that went in afterwards they had to purchase additional links they were extending the size of the levee makes sense and they had to pay for that was what's the difference between the water put on my land as a temporary berm and the permanent sand put on other people's land for a permanent farm for just what shell are saying for the benefit of everyone but one person is paying that price but that person receiving a benefit to their land would be flooded just like mine but you have to pay for that when you put a levy on someone's land just as if you put us temporary water berm this case is a little different i think it's unusual to use water as a levee but that's what they did they took water from a separate source not from the mississippi river mind you from the what we call the d or the hurt or so in those circumstances would be liability and yet the supreme court said there was you know the stone barber is kind of a balancing test that we have to use but there was a line of levees and they let a lower place in different places to make sure the levee survived and the plaintive was saying well i wanted you to put the whole levee up the whole way and that was that claim right it's kind of a you didn't do enough there that's not our case this our case is a direct action where they took my land and created a water levee for a temporary purpose so that makes it different just under the facts but even if you take kind of the language of the slight damages versus great benefit analysis you run into really a clearly erroneous standard and judge smith who looked at that and said no these are significant damage is a lot of the trial was about the kind of the investment back expectations of these plaintive and what they expected from living on that lake and one of the things that the court and i think everyone would agree that they certainly did not expect government action to intentionally flood their property that's of expectations they can we're comfortable having and so these weren't slight damage is done to my property these were significant damage that took away their benefit and so i did run and i have prevented even more  mean not that i'm not i don't disagree with that fault but that's not the question of stone in barcelona bar doesn't say that if you receive benefit then it's still not a taking it's not an exception in that way it's interesting you know and in normal  domain you don't get the benefit of a road coming onto your property if the road comes on your property increases the value of your land you don't get that benefit used they still have to the government just to pay for the road as if you want receiving that benefit but because  the constitution says you have to be just compensation and so when you use my land for your water berm for your levy whether it's temporary or not you have to pay for the taking you have to pay for what you've taken for that moment and the fact that you would have been hurt worse if the levee would have breached well that gets into that equation where you say well if it breaks there nine one hundred thousand acres that got flooded you've had four thousand structures that were flooded not the not the forty structures of my clients and that's a different thing and that's the balancing act of spending barbara raises as the relative benefits test where they say well it's just slight damage this wasn't slight damage to my clients this was a one hundred percent damage to my of catastrophic damage to their property would have happened if the levees breached and in fact i when i meant at the time of the flood they couldn't go their property so at the moment it was one hundred percent but you're right once the flood went back down the their houses for fun and that was a good thing and they received a benefit for that i'm not i'm not afraid of that when i don't think the law is that was that if you receive a benefit they can take the rest of your property they also not the law that you can take a lot of someone's property but as just the greater benefits to the individual property owner i think if you really really stunning barter and one understand what she's talking about what the complaint is and spun in barbara that is the lower part of the levee that are creating the damages to or what she calls damage or the plaintiff in that case call damages to their problem that yes i do think you get into the conversation that it's a public question what's the greater good i don't think it's just as to that individual and but that goes back to my point about you couldn't put a levy on milan let's say the permanent fix was forever you know they would have taken land if the timbers the flooding was was permanent so they take that property permanently but they still save my houses thinking of hardwick our most farms card in the parts cases those do seem to focus on not this greater good balancing that that you've been referring to  but rather on the balancing of the interests of the particular plaintiff involved and those cases do seem to support an application of the relative benefits doctor in a situation like this it client suffered suffered significant damage is just the st piece you have to get past kind of and that's been in bar process once you accept that my clients have a significant damages then you can start talking about kind of the relative benefits analysis they didn't they didn't their houses weren't taken away and that's a good thing and so they receive some benefit but the idea that say my time's up that either this isn't significant damage is simply is  the court discussed the arkansas game case and there in st bernard parish the court made it quite clear what the proper comparison was in arkansas aga you compared to what would have happened with the dam at issue in place and without the damage in place and that's that's the question that's not a matter of the cor intentionally it's a question of how do you compare what would have happened if the dam was built and if the dam if there were no down in place second secondly mr also  houses well with all respect i don't think of labeling something a temporary water berm really gets the legal issues that are are posed here by causation by the relative benefits doctrine by the honor the question the question still with would need to be asked what is the what is the relevance of that fact under any of the four doctrines that the government is relying on here and i think the one of the critical breach of the levee and not only would the peers in both houses have been damaged but those houses would have been totally inundated so plaintiffs would have been left much worse off if the corps had not placed the so i believe the relative benefits doctrine has a broader temporal scope but i think you could view it that way you could view that an element of as a consideration under the causation doctrine  you look at the causation analysis question when you look at any of the other doctors we're speaking about that that fact in and of itself is not dispositive of whether that individual plaintiff is entitled to just