United States Court of Appeals 

for the Federal Circuit ______________________ 

VIRGINIA MILTON AND ARNOLD MILTON, ON 

BEHALF OF THEMSELVES AND ALL OTHER 

SIMILARLY SITUATED PERSONS, ET AL.,

Plaintiffs-Appellants

TRAVELERS EXCESS AND SURPLUS LINES 

COMPANY,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2021-1131, 2021-1132, 2021-1133, 2021-1134, 2021-1135, 

2021-1136, 2021-1137, 2021-1138, 2021-1139, 2021-1140, 

2021-1142, 2021-1143, 2021-1144, 2021-1145, 2021-1146, 

2021-1147, 2021-1148, 2021-1151, 2021-1152, 2021-1155, 

2021-1157, 2021-1159, 2021-1161, 2021-1162, 2021-1163, 

2021-1164, 2021-1165, 2021-1167, 2021-1171, 2021-1172, 

2021-1173, 2021-1174, 2021-1175, 2021-1176, 2021-1177, 

2021-1178, 2021-1184, 2021-1186, 2021-1187, 2021-1188, 

2021-1189, 2021-1190, 2021-1192, 2021-1193, 2021-1195, 

2021-1196, 2021-1197, 2021-1198, 2021-1199, 2021-1200, 

2021-1201, 2021-1204, 2021-1205, 2021-1206, 2021-1207, 

2021-1208, 2021-1214, 2021-1215, 2021-1216, 2021-1217, 

2021-1218, 2021-1220, 2021-1221, 2021-1222, 2021-1223, 

2021-1224, 2021-1225, 2021-1230, 2021-1231, 2021-1232, 

2021-1233, 2021-1234, 2021-1237, 2021-1238, 2021-1239, 

2021-1240, 2021-1241, 2021-1242, 2021-1243, 2021-1244, 

2021-1250, 2021-1251, 2021-1252, 2021-1253, 2021-1254, 

Case: 21-1131 Document: 120 Page: 1 Filed: 06/02/2022
2 MILTON v. US

2021-1255, 2021-1256, 2021-1268, 2021-1269, 2021-1270, 

2021-1271, 2021-1272, 2021-1273, 2021-1274, 2021-1275, 

2021-1276, 2021-1277, 2021-1279, 2021-1280, 2021-1281, 

2021-1282, 2021-1283, 2021-1284, 2021-1285, 2021-1286, 

2021-1287, 2021-1288, 2021-1289, 2021-1290, 2021-1291, 

2021-1293, 2021-1294, 2021-1295, 2021-1296, 2021-1302, 

2021-1303, 2021-1304, 2021-1305, 2021-1306, 2021-1307, 

2021-1308, 2021-1309, 2021-1310, 2021-1311, 2021-1312, 

2021-1313, 2021-1314, 2021-1315, 2021-1316, 2021-1317, 

2021-1318, 2021-1319, 2021-1320, 2021-1322, 2021-1324, 

2021-1325, 2021-1335, 2021-1336, 2021-1337, 2021-1338, 

2021-1339, 2021-1341, 2021-1394, 2021-1398, 2021-1403, 

2021-1404, 2021-1405, 2021-1406, 2021-1407, 2021-1427, 

2021-1429, 2021-1431, 2021-1444, 2021-1455, 2021-1464, 

2021-1465, 2021-1467, 2021-1468, 2021-1472, 2021-1479, 

2021-1481, 2021-1482, 2021-1483, 2021-1492, 2021-1494, 

2021-1499, 2021-1513, 2021-1529, 2021-1539, 2021-1540, 

2021-1541, 2021-1847, 2021-1889, 2021-1890, 2021-1891, 

2021-1894, 2021-1947, 2021-2047

______________________ 

Appeals from the United States Court of Federal 

Claims in Nos. 1:17-cv-01235-LAS, 1:17-cv-09002-LAS, 

Senior Judge Loren A. Smith.

______________________ 

Decided: June 2, 2022

______________________ 

RUSSELL STANLEY POST, Beck Redden LLP, Houston, 

TX, argued for all plaintiffs-appellants. Plaintiffs-appellants Virginia Milton, Arnold Milton, Edward J. Bush, 

Christopher Tita, Ijang Fomukong-Tita, Caleb S. Atwood, 

Juan Atwood, Sook N. Byun, Suck D. Cho, Erin R. Danielson, Stephen E. Danielson, John DeFilippo, Marylyn L. 

DeFilippo, Energy Building Systems, Inc., Jorge E. 

Galindo, Ashish Gupta, Shibani Gupta, L. Katherine 

Haute, Mary C. Horany, Monzer Hourani, Kaslik 

Case: 21-1131 Document: 120 Page: 2 Filed: 06/02/2022
MILTON v. US 3

Investments, L.C., Gerrit O. Kirkwood, Chil S. Ko, Joanna 

Krakowiak, Hyunil Jo Lee, Shina Lee, Charles J. Lucas Jr., 

Jamie Manning, Rad Manning, Tommy T. Maoz, Yong H. 

Marx, Ina N. O'Connor, Frank Papapanagiotou, Karen N. 

Pillai, Rajeev R. Pillai, Cherie D. Platt, John D. Platt, Lauren A. Platt, Prashanthi M. Prasad, Amer A. Rahim, Deborah D. Regone, William R. Regone, Sophia Riemann, Matt 

Sharrock, Traci Sharrock, Sachin Sheldekar, Gerald 

Siegmyer, Marian Siegmyer, Julie D. Sparks, Michael W. 

Sparks, John Hughes Tenison, Catherine C. Yen, Jerome 

C. Yen, Debora H. York, William H. York, David Young, 

Tami Young, Nan Zhang, Xuechen Zhang, Weili Zhu, Sejla 

Bakalovic, Briarhills Office, Ltd., Beverly Bugler, Richard 

Bugler, Allen Caine, Fernando Carvalho, Thomas Damsgaard, Helena De Ferro, Jean Ann Dieudonne, John Sutter 

Dieudonne, Blanca Franklin, Bruce Franklin, Rosa Frimm, 

Michael Lawson, Penelope P. Lawson, Heather Papadopoulos, John Papadopoulos, Risa Pippin, Dawn Rasch, Steven Rasch, Bamir Rudic, Gabrielle Strout, Marceline 

Sutter, Jennifer Teixeira, Maurice Teixeira, Nancy N. 

Tucker, Thomas E. Tucker, Charlie Whitson, Linda Whitson, Steve Wortham, Shoelen Derrington, Carlos Escobar, 

Susan P. O'Keefe, Genie Panaccione, Robert Panaccione, 

Byron N. Plant, Lysette M. Plant, Keith Ron, T. Scott, Eileen D. Zwart, Peter Zwart, Donald R. Ray, Judy Ray, Billie 

Williams, Liliana Williams also represented by PARTH 

GEJJI, DAVID M. GUNN. 

 RAND PATRICK NOLEN, Fleming, Nolen & Jez, L.L.P.,

Houston, TX, for plaintiffs-appellants Virginia Milton, Arnold Milton, Edward J. Bush, Christopher Tita, Ijang 

Fomukong-Tita. 

 JOSEPH CARL CECERE, JR., Cecere PC, Dallas, TX, for 

plaintiffs-appellants Martha Pollack, AGL, LLC, Jonathan 

Levy. Also represented by JASON ARON ITKIN, NOAH 

MICHAEL WEXLER, Arnold & Itkin, LLP, Houston, TX. 

Case: 21-1131 Document: 120 Page: 3 Filed: 06/02/2022
4 MILTON v. US

 JEFFREY RANKIN LEARNED, Denenberg Tuffley, PLLC, 

Southfield, MI, for plaintiffs-appellants American Home 

Assurance Company, Great Lakes Insurance SE, Lexington Insurance Company. 

 BRYANT STEVEN BANES, Neel, Hooper & Banes, P.C., 

Houston, TX, for plaintiffs-appellants Randy D. Horsak, 

Mervin Chess, Randall Teufel. Also represented by SARAH 

P. HARRIS. 

 BENJAMIN LEWIS, Carroll Warren & Parker, Jackson, 

MS, for plaintiff-appellant Travelers Excess and Surplus 

Lines Company. Also represented by MONIKA F. MOORE, 

Houston, TX. 

 BRIAN C. TOTH, Environment and Natural Resources 

Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented 

by JEAN E. WILLIAMS. 

 NANCIE GAIL MARZULLA, Marzulla Law, LLC, Washington, DC, for amici curiae Hulak Abed-Stephen, Zavik AbedStephen, Joan C. Alford. Also represented by ROGER J.

MARZULLA; FRED HAGANS, Hagans Montgomery Hagans, 

Houston, TX. 

 ______________________ 

Before LOURIE, CHEN, and CUNNINGHAM, Circuit Judges.

CUNNINGHAM, Circuit Judge.

Appellants Virginia Milton and hundreds of other individuals and companies owned property downstream from 

the Addicks and Barker Dams in Houston, Texas. They 

allege that the Army Corps of Engineers flooded their properties when it opened the dams’ floodgates during Hurricane Harvey. Now, they appeal from the decision of the 

United States Court of Federal Claims holding that they do 

not have a cognizable property interest in perfect flood 

Case: 21-1131 Document: 120 Page: 4 Filed: 06/02/2022
MILTON v. US 5

control, and thus they cannot state takings claims against 

the United States. See In re Downstream Addicks & 

Barker (Tex.) Flood-Control Reservoirs, 147 Fed. Cl. 566 

(2020). We hold that Appellants have alleged cognizable 

property interests in flowage easements, reverse the decision of the Court of Federal Claims, and remand for further 

proceedings consistent with this opinion.

I. BACKGROUND

A. Factual Background

At the western edge of Houston there is a watershed 

called Buffalo Bayou. J.A. 992. Despite its picturesque 

name, Buffalo Bayou was the site of “devastating floods in 

1929 and 1935.” J.A. 995. In the floods’ aftermath, Congress authorized construction of dams on the bayou and its 

tributaries. Pub. L. No. 75-685, 52 Stat. 802, 804 (1938). 

The result was Barker Dam (completed in 1945) and Addicks Dam (completed in 1948). J.A. 995–97. By 1963, 

each dam held behind it a large reservoir and had five

gated outflowing conduits. J.A. 995–96.

In line with its responsibility for flood control, the 

Corps adopted the Addicks and Barker Reservoirs Water 

Control Manual published in 2012. See J.A. 974–1131. The 

Manual provides that if an inch of rain falls within a 24-

hour period or if downstream flooding is expected, the

Corps must close the dams’ floodgates. J.A. 1022. If the 

water in the reservoirs reaches set heights—101 feet behind Addicks Dam or 95.7 feet behind Barker Dam—a surcharge regulation kicks in. J.A. 1023. At this point, the 

Corps must monitor whether the inflow will continue to 

cause the reservoirs to rise. Id. “If inflow and pool elevation conditions dictate,” the Corps releases water from the 

reservoir according to a set schedule. Id. At the beginning 

of 2017, such induced surcharges had never been made. 

J.A. 1416.

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6 MILTON v. US

Then, Hurricane Harvey approached Houston. The 

reservoirs were empty before the storm made landfall. J.A. 

4661, 5194. On August 25, 2017, the Corps closed the 

dams’ floodgates. J.A. 5202. Shortly after, Hurricane Harvey made landfall. J.A. 936. Although Hurricane Harvey 

soon weakened into a tropical storm, it still poured more 

than thirty inches of water onto the city in four days. Id. 

In the early hours of August 28, the conditions for the induced surcharge regulations were met. J.A. 4657. The 

Corps proceeded to release up to 8,000 cubic feet per second 

of water from behind the dams. J.A. 5208–09. The following day, it increased the release from up to 8,000 to 12,000 

cubic feet per second. J.A. 5209–11. On August 30, it again 

increased the release from 12,000 to 13,000 cubic feet per 

second, a rate the Corps maintained until September 4. 

J.A. 5211–13.

Substantial downstream flooding followed. The Government’s expert believes that some of Appellants’ properties were flooded for more than eleven days and some were 

flooded at a maximum depth greater than eight feet above 

the first finished floor. J.A. 2315. Several Appellants testified that they evacuated their homes by boat. J.A. 

1674–94, 4195, 4270. Appellants assert that many of their 

properties incurred hundreds of thousands, if not millions, 

of dollars in damage each. See J.A. 1721–1861, 4195.

B. Procedural History

Following this tragedy, hundreds of property owners 

filed complaints in the Court of Federal Claims alleging 

that the flooding constituted an uncompensated, physical

taking of their property by the Government. In re Downstream, 147 Fed. Cl. at 570, 574. The Court of Federal 

Claims joined all these cases into a Master Docket and then 

split them into an Upstream Sub-Docket—for properties 

upstream of the dams—and a Downstream Sub-Docket—

for properties downstream of the dams. Id.

Case: 21-1131 Document: 120 Page: 6 Filed: 06/02/2022
MILTON v. US 7

In the Upstream Sub-Docket, the court found that 

plaintiffs were owners of land not subject to flowage easements, meaning that they had valid property interests that 

could be taken. In re Upstream Addicks & Barker (Tex.) 

Flood-Control Reservoirs, 146 Fed. Cl. 219, 248–49 (2019). 

After a trial, the court found that the Government flooded 

plaintiffs’ properties and so engaged in a taking. Id. at 264. 

The Downstream Sub-Docket proceeded differently. 

There, the court ultimately granted the Government’s motions to dismiss and for summary judgment and denied Appellants’ motion for summary judgment. In re 

Downstream, 147 Fed. Cl. at 584. Specifically, the court

held that Appellants did not articulate a cognizable property interest that the Government could take because “neither Texas law nor federal law creates a protected property 

interest in perfect flood control in the face of an Act of God.” 

Id. at 570. Under Texas law, the court wrote, Appellants

“own their land subject to the legitimate exercise of the police power to control and mitigate against flooding.” Id. at 

578. The court held that “Texas law has specifically limited 

liability in both a takings and a tort context where the operator of a water control structure fails to perfectly mitigate against flooding caused by an Act of God.” Id. at 579. 

Finally, the court concluded that as “each of the plaintiffs 

in this case acquired their property after the construction 

of the Addicks and Barker Dams and Reservoirs, plaintiffs 

acquired their properties subject to the superior right of the 

Corps to engage in flood mitigation and to operate according to its Manual.” Id. at 580 (emphasis in original). 

The court also did not find a cognizable property interest under federal law. Looking to the Flood Control Act of 

1928, 33 U.S.C. § 702c, the court held that “simply owning 

property that benefits from flood control structures does 

not by itself confer upon those owners a vested right in perfect flood control.” Id. at 582. The court further wrote that 

the Supreme Court has “routinely” held that “the government cannot be held liable under the Fifth Amendment for 

Case: 21-1131 Document: 120 Page: 7 Filed: 06/02/2022
8 MILTON v. US

property damages caused by events outside of the government’s control.” Id. at 583 (collecting cases). Thus, the 

court concluded that because there was no cognizable property interest under either state or federal law, Appellants 

had failed to state a claim upon which relief could be 

granted. Id. at 583–84.

These appeals followed. We have jurisdiction pursuant 

to 28 U.S.C. § 1295(a)(3).

II. DISCUSSION

A. Legal Framework

The Fifth Amendment forbids the government from 

taking private property “for public use, without just compensation.” U.S. Const. amend. V. Courts must evaluate 

two prongs in determining whether a government action 

constitutes a taking. “First, the court determines whether 

the claimant has identified a cognizable Fifth Amendment 

property interest that is asserted to be the subject of the 

taking. Second, if the court concludes that a cognizable 

property interest exists, it determines whether that property interest was ‘taken.’” Acceptance Ins. Cos., Inc. v. 

United States, 583 F.3d 849, 854 (Fed. Cir. 2009) (citation 

omitted). 

“We review the Court of Federal Claims’ legal conclusions de novo.” Hardy v. United States, 965 F.3d 1338, 

1344 (Fed. Cir. 2020) (citing Holland v. United States, 621 

F.3d 1366, 1374 (Fed. Cir. 2010)). Whether a compensable 

property interest exists is a question of law. Id. (citing Casitas Mun. Water Dist. v. United States, 708 F.3d 1340, 

1351 (Fed. Cir. 2013)). “Whether a taking under the Fifth 

Amendment has occurred is a question of law with factual 

underpinnings.” Id. (quoting Cary v. United States, 552 

F.3d 1373, 1376 (Fed. Cir. 2009)).

Case: 21-1131 Document: 120 Page: 8 Filed: 06/02/2022
MILTON v. US 9

B. The Flood Control Act

Before turning to whether a cognizable property interest exists, we first address the Government’s argument 

that it is immune from suits alleging takings based on its 

flood control measures. The Government contends that 

Congress enacted the Flood Control Act of 1928, 33 U.S.C. 

§ 702c, “to ensure beyond doubt that sovereign immunity 

would protect the Government from ‘any’ liability associated with flood control.” Appellee’s Br. 25 (quoting United 

States v. James, 478 U.S. 597, 608 (1986)). In other words, 

the Government argues that the United States is immune 

from takings claims that stem from Government attempts 

at flood control.

The Government cannot avoid suit so easily. Under the 

Tucker Act, which predates the Flood Control Act by more 

than 40 years, the United States granted the Court of Federal Claims jurisdiction over—and waived sovereign immunity from—“any claim against the United States 

founded either upon the Constitution, or . . . for liquidated 

or unliquidated damages in cases not sounding in tort.” 28 

U.S.C. § 1491(a)(1). In California v. United States, we held 

that there was no evidence in the text or legislative history 

of the Flood Control Act “that Congress had ‘withdrawn the 

Tucker Act grant of jurisdiction.’” 271 F.3d 1377, 1383 

(Fed. Cir. 2001) (quoting Ruckelshaus v. Monsanto Co., 467 

U.S. 986, 1017 (1984)). Section 702c, thus, does not preclude Court of Federal Claims jurisdiction over this case. 

C. Existence of a Cognizable Property Interest

Having concluded that the Government is not immune 

from Appellants’ takings claims, we turn to whether the 

Court of Federal Claims correctly determined that Appellants did not establish a cognizable property interest. We 

hold that the Court of Federal Claims erred, and such a 

cognizable property interest exists. 

Case: 21-1131 Document: 120 Page: 9 Filed: 06/02/2022
10 MILTON v. US

We are tasked with examining whether Appellants 

have “identified” a cognizable property interest. Acceptance, 583 F.3d at 854. Appellants’ master complaint

alleges that the Government took flowage easements in the 

flooded properties. J.A. 121 (¶ 117). We, therefore, consider whether Appellants have a cognizable property interest in flowage easements.

“It is well settled that existing rules and understandings and background principles derived from an independent source, such as state, federal, or common law, define 

the dimensions of the requisite property rights for purposes 

of establishing a cognizable taking.” Acceptance, 583 F.3d 

at 857 (internal quotation omitted). Texas courts have recognized that property owners have interests in flowage 

easements under Texas law. See, e.g., Harris Cnty. Flood 

Control Dist. v. Kerr, 499 S.W.3d 793, 802 (Tex. 2016); Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 550 (Tex. 

2004); Gleghorn v. City of Wichita Falls, 545 S.W.2d 446, 

447 (Tex. 1976). And so, under Texas law, a right to grant 

a flowage easement “is one of the rights in the bundle of 

sticks of property rights that inheres in a res.” Acceptance, 

583 F.3d at 857 (quoting Am. Pelagic Fishing Co., L.P. v. 

United States, 379 F.3d 1363, 1376 (Fed. Cir. 2004)). The 

Government argues that several exceptions negate Appellants’ property interests. We disagree.

First, the Government contends that Appellants do not 

have a cognizable property interest because “Texas law recognizes that ‘all property is held subject to the valid exercise of the police power’ by the government to provide for 

public health and safety.” Appellee’s Br. 19 (quoting City 

of Dallas v. Stewart, 361 S.W.3d 562, 569 (Tex. 2012)). The 

Government asserts that flood control is such an exercise 

of the police power. Id. at 19–20. But the Government 

stretches the holdings of the cases it cites to reach that conclusion. In Stewart and two other cases that the Government cites—Severance v. Patterson, 370 S.W.3d 705 (Tex. 

2012), and Lombardo v. City of Dallas, 73 S.W.2d 475 (Tex. 

Case: 21-1131 Document: 120 Page: 10 Filed: 06/02/2022
MILTON v. US 11

1934)—the Texas Supreme Court expressly tied the exercise of the police power to the abatement of nuisances. See

Severance, 370 S.W.3d at 710; Stewart, 361 S.W.3d at 569; 

Lombardo, 73 S.W.2d at 479. Here, there is no allegation 

that Appellants’ properties constituted public nuisances. 

And the case that the Government cites to connect the control of flood waters to the police power—Motl v. Boyd, 286 

S.W. 458 (Tex. 1926)—is about the scope of riparian rights, 

not flowage easements or even takings. Id. at 463; see

Brazos River Auth. v. City of Graham, 354 S.W.2d 99, 105 

(Tex. 1961) (similarly distinguishing Motl). A general police power exception to property rights does not exist under 

Texas law. Stewart, 361 S.W.3d at 575 (noting that Texas 

law has “moved beyond the earlier notion that the government’s duty to pay for taking property rights is excused by 

labeling the taking as an exercise of the police powers” 

(quoting Steele v. City of Hous., 603 S.W.2d 786, 789 

(1980))). 

The Government cites other cases that it argues “rejected claims for takings from the controlled release of water from reservoirs in response to unprecedented rainfall,” 

consistent with the Government’s understanding of the 

scope of the police power. Appellee’s Br. 20. But these 

cases are also distinguishable. Waller v. Sabine River Authority, Case No. 09-18-00040-CV, 2018 WL 6378510, at *5

(Tex. App. Dec. 6, 2018), Sabine River Authority v. Hughes, 

92 S.W.3d 640, 642 (Tex. App. 2002), and Wickham v. San 

Jacinto River Authority, 979 S.W.2d 876, 883–84 (Tex. App. 

1998), each concluded that plaintiffs had failed to present

sufficient evidence that water released from the relevant 

dam flooded their property. Thus, in no case did the relevant river authority engage in a “taking” under the Texas 

constitution. Waller, 2018 WL 6378510, at *4–5; Sabine, 

92 S.W.3d at 641–42; Wickham, 979 S.W.2d at 880, 884. 

None of these decisions turned on whether the plaintiffs 

had a cognizable property interest.

Case: 21-1131 Document: 120 Page: 11 Filed: 06/02/2022
12 MILTON v. US

Similarly, the Government incorrectly asserts that Appellants do not have a cognizable property interest because 

Hurricane Harvey was an Act of God. See Appellee’s Br. 

20–21. Rather, Acts of God relate, if at all, to whether a 

taking has occurred, not whether a party has a cognizable 

property interest. For example, in Kerr, the Texas Supreme Court gave six reasons for concluding that a taking 

had not occurred under the Texas constitution, one of 

which was that the flooding resulted from Acts of God. 499 

S.W.3d at 799, 807. Other cases that the Government cites 

similarly do not stand for the broad proposition that property is held subject to Acts of God. See Luther Transfer & 

Storage, Inc. v. Walton, 296 S.W.2d 750, 753 (Tex. 1956) 

(discussing an Act of God as part of proximate causation 

analysis in negligence lawsuit); McWilliams v. Masterson, 

112 S.W.3d 314, 320–21 (Tex. App. 2003) (same); Benavides 

v. Gonzalez, 396 S.W.2d 512, 514 (Tex. App. 1965) (addressing defense to Texas statute prohibiting “any person to divert the natural flow of surface waters in this State or to 

impound such waters in such manner as to damage the 

property of another by overflow of such waters so diverted 

or impounded”).

The Government next contends that Appellants’ property rights “are limited by the owners’ expectations as of 

the date they acquired their properties.” Appellee’s Br. 22. 

Again, we disagree.1 One case that the Government relies 

on turns on the level of intent needed to state a takings 

claim under the Texas Constitution. City of Tyler v. Likes, 

962 S.W.2d 489, 504–05 (Tex. 1997). Likes does not suggest 

a broad limit on property rights. Id. at 504–05 (not discussing scope of property rights when addressing plaintiff’s takings claim). And the Government’s other case—City of 

1 We note that plaintiffs allege a physical, rather 

than a regulatory, taking. In re Downstream, 147 Fed. Cl. 

at 570.

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MILTON v. US 13

Dallas v. Winans, 262 S.W.2d 256, 259 (Tex. Civ. App. 

1953)—is not about takings; instead, Winans discusses to 

whom a nuisance cause of action accrues. There is no blanket rule under Texas law that property rights are held subject to owners’ expectations on acquisition.

Finally, we turn to the Government’s argument that 

Appellant’s property rights are held subject to the police 

power under federal law. See Appellee’s Br. 28–32. The 

Supreme Court has rejected the notion that private property is subject to “unbridled, uncompensated qualification

under the police power.” Lucas v. S.C. Coastal Council, 505 

U.S. 1003, 1014 (1992). But the Supreme Court has recognized that a taking may be non-compensable if there is “the 

destruction of ‘real and personal property, in cases of actual 

necessity, to prevent the spreading of a fire’ or to forestall 

other grave threats to the lives and property of others.” Id.

at 1029 n.16 (quoting Bowditch v. Boston, 101 U.S. 16, 

18–19 (1880)); see also Pa. Coal Co. v. Mahon, 260 U.S. 393, 

415–16 (1922); TrinCo Inv. Co. v. United States, 722 F.3d 

1375, 1377–78 (Fed. Cir. 2013). The doctrine of necessity 

is not relevant, however, to whether Appellants have asserted a cognizable property interest; rather, the doctrine

is a defense.2 See TrinCo, 722 F.3d at 1379. The doctrine, 

thus, does not change our conclusion that the Court of Federal Claims erred in concluding that Appellants failed to 

assert a cognizable property interest.

D. Existence of a Taking

Both Appellants and the Government urge us to reach 

the second prong of the takings analysis and enter summary judgment in their favor. We decline this invitation. 

We have noted that “due to the fact-intensive nature of takings cases, summary judgment should not be granted 

2 Indeed, the Government has asserted the necessity 

doctrine as a defense. J.A. 723.

Case: 21-1131 Document: 120 Page: 13 Filed: 06/02/2022
14 MILTON v. US

precipitously.” Moden v. United States, 404 F.3d 1335, 

1342 (Fed. Cir. 2005) (citing Yuba Goldfields, Inc. v. United 

States, 723 F.2d 884, 887 (Fed. Cir. 1983)). Thus, it is appropriate to remand this case to the Court of Federal 

Claims to address the second prong of the takings analysis 

in the first instance. In other words, we leave it for the 

lower court to consider: (1) whether Appellants have shown 

that a temporary taking occurred under the test applicable 

to flooding cases, Ark. Game & Fish Comm’n v. United 

States, 568 U.S. 23, 39 (2012); (2) whether Appellants have 

established causation when considering “the impact of the 

entirety of government actions that address the relevant 

risk,” St. Bernard Par. Gov’t v. United States, 887 F.3d 

1354, 1364 (Fed. Cir. 2018), cert. denied 139 S. Ct. 796 

(2019); and (3) whether the Government can invoke the necessity doctrine as a defense. 

III. CONCLUSION

For the foregoing reasons, we reverse the decision of 

the Court of Federal Claims and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED

Case: 21-1131 Document: 120 Page: 14 Filed: 06/02/2022