# United States Court of Federal Claims

No. 14

- 304 L, 14

- 1120 L
Filed: January 10, 2019

______________________________________ )
ALFORD ET AL.

, ) ) Plaintiff, ) )

v. ) ) THE UNITED STATES, ) )
Defendant. ) ______________________________________ )

Sheldon G. Alston

, Brunini, Grantham, et al.

, Jackson, Mississippi , attorne y for plaintiff s

.

Barrett Blake Teller , Teller Hassel and Hopson, LLP, Vicksburg, Mississippi, attorney for consolidated plaintiff.

William James Shapiro

, United States Department of Justice, Environmental & Natural
Resources Division

, Sacramento, California

, attorney for defendant.

OPINION AND ORDER

SMITH , Senior Judge

This action comes before the Court following trial held from January 25, 2018

, until February 1, 2018. Plaintiffs own properties surrounding Eagle Lake and brought this Complaint against the Army Corps of Engineers (“Corps”) for damage to their individual properties after the flooding of Eagle Lake. See generally Amended Complaint (hereinafter “Compl.”).
Plaintiffs filed their Post

- Trial Briefs on April 10, 2018, seeking $374,973.50 in damages from
defendant. See generally Plaintiffs’ Post

- Trial Brief (hereinafter “P l s

. ’ Brief ” ). Defendant filed
its Post

- Trial Brief on May 25, 2018, disputing plaintiffs’ allegations. See generally Defendant’s
Post

- Trial B rief (hereinafter “D ef. ’s Brief”). For the reasons set forth below, the Court rules in favor of plaintiffs and awards plaintiffs, collectively, $168,000

, plus interest

, in damages.

I. Background

This case is somewhat unique but based on a fairly simple set of facts. P laintiffs owned property on Eagle Lake, an oxbow lake located about fifteen miles from Vicksb urg, Mississippi.

See Joint Ex hibit ( hereinafter “ Joint Ex.”) 46 at 12; Defendant’s Exhibit (hereinafter “Def. Ex.”) 40 at 10; Trial Transcript (hereinafter “Tr.”) 57:1

– 3

. In 2000, the Corps and various state agencies signed the Eagle Lake Water Level Management Agreement (“Eagle Lake2

Agreement”)

, set ting a schedule for raising and lowering the water level in Eagle Lak e . Joint Ex.

80

. The Eagle Lake Agreement specified that the water levels in the Lake be kept between 70
feet and 76.9 feet. Id. ; Tr. 143: 6

– 8 . The predictable water levels in Eagle Lake allowed residents to build piers, boat houses, and docks extending out from the shore. See Tr. 143:12

– 19.

On April 28 , 2011, the Corps approved a proposal to raise the water levels in Eagle Lake
to over 90 feet. J oint Ex. 163

. The flooding of Eagle Lake destroyed many of plaintiffs ’ piers, boathouses, and docks

, costing plaintiffs many thousands of dollars

. P l s

. ’ Brief at 7

– 9

. 1 Initially, after the flood damage, the Corps distributed claim forms to plaintiffs. See

, e.g. , Joint

Ex. 31. The government , however, denied compensation for those claims

. See, e .g. , Joint Ex.

30. As a result, this action ensued.

The reason the government took the flooding action goes back over a year before the
government flooded Eagle Lake

. See Joint Ex. 95 at 1

– 2. In February of 2010, sand boils 2 were found on property adjacent to the levee in the Buck Chute area, which was part of the Mississippi River levee system. P l s

. ’ Brief at 5; Tr. 840:8

– 20

. These sand boils indicated that the levee was being undercut by pressure from the river and might break, flooding a very large area of about a million acres and possibly between four thousand to six thousand homes and business es

. Tr.
292:14

– 18, 1309:14

– 22

, 1441:11

– 14 ; Joint Ex. 78 ; Joint Ex. 156.

The Corps studied the sand boils and the area adjacent to the levee for more than a year.

See Tr. 1003:16

– 19. In 2011

, very wet weather caused an unusual level for the annual flood stage of the river. W ater pressures were raised to a dangerous level ag ainst the levee. Tr.
856:16

– 20 . The Corps ’ experts determined that raising the Lake to more than 90 feet would counteract the pressure and likely preserve the levee. See Joint Ex. 163

. A decision was made to
raise the Lake , knowing plaintiffs ’ properties would be damaged. Id. E xperts projected that the
likelihood of breach was over 95% before the Corps flooded Eagle Lake. Joint Ex. 72 at 51;

1 Citing, inter alia

, real estate appraisal expert Robert L. Crook ’ s just compensation opinions on plaintiffs ’ properties. See Joint Ex. 42 ; Joint Ex. 46 ; Joint Ex. 47

. 2 As explained by Dr. Shewbridge,

A sand boil is a bubbling spring of water sometimes several feet in diameter that bursts through the ground often near the land

- side toe of a levee. Fast flowing water from the spring can cause migration of sand and silt from the underlying aquifer, causing it to “boil” out of the ground, which in turn can result in the
formation of a void or “pipe” below the boil. If a pipe forms and progresses through the aquifer to the river and continues to enlarge from erosion, it can eventually cause a collapse of the overlying le vee embankment, leading to
land

- side slope instability, overtopping erosion and subsequent breach of the
levee. This is referred to as “Backwards Erosion Piping.”

Def. Ex. 40 at 14.3

Joint Ex. 85 at 45:10

– 23; Def. Ex. 40 at 30; Tr. 1057:4

– 1062:1

, 1084:19

– 1085:5, 1438:21

– 25

. Plaintiffs do not challenge this evidence.

II. Discussion

The Takings Clause of the Fifth Amendment of the Constitution prohibits the United States government from taking private property for public use w ithout “just compensation.” U.S.
Const . amend. V. “ A compensable taking of property occurs when society imposes a burden on
an individual ’ s property which, in fairness and justice, society itself should bear. ” Bassett v.
United States , 55 Fed. Cl. 63, 67 (2002) . This Court’s jurisdictional grant provides it with the power to decide claims based on the Takings Clause of the Fifth Amendment.

A. Liability

As a principle, the right to control one’s private property is paramount to the existence of
our Nation. A government should strive to protect, rather than destroy personal property. J OHN
L OCKE
, T WO T REATISES ON G OVERNMENT §§ 124, 201, 222

. The Court must analyze takings
claims regardless of the consequences to gov ernmental policy. See Loretto v. Teleprompter Manhattan CATV Corp. , 458 U.S. 419, 426 (1982) (“[A] permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve. ”).

“ Our jurisprudence involving condemnations and physical takings is as old as the Republic and, for the most part, involves the straightforward application of per se rules. ” Tahoe

- Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency , 535 U.S. 302, 322 (2002).

It is c lear in this case that the government knowingly took action that destroyed some of the p laintiffs’ property , and that this was done for a public purpose. It is also clear the property, the docks, piers, and boathouses were destroyed by the government’s ac tion. T hus, t he only
issue remaining before this Court is whether the government is required to compensate plaintiffs
for their loss . The government has two principle arguments for why compensation is not required in this case. The first is that the action taken by the Corps was in an emergency
situation triggering the doctrine of necessity. The doctrine of necessity presupposes an almost
instantaneous decision to act

. See Trin

- Co Inv . Co. v. United States , 130 Fed. Cl. 592, 599 (2017). Here the C o urt finds that the facts do not meet the conditions required for the doctrine of necessity to apply . The Corps was a ware of the sand boils and potential dangers for over a year
before ultimately flooding Eagle Lake . In fact, the government carefully anal yzed its options and chose the most cost effective one to immediately reduce the likelihood of a levee breach.

The government considered its options carefully and deliberately over a period of more than a year, from early in 2010 to Spring of 2011. It chose the most effective and cost

- efficient way of dealing with the problem. The flooding of Eagle Lake served as a temporary stay of the danger while a more permanent solution at a cost of $2.7 million occurred after the Mississippi River’s flood stag e abated. If this kind of “emergency” justifies an exemption from the Taking4

cla use of the Fif

th Amendment

, then many large government projects would similarly be insulated when private land or resources are needed.

The government’s second argument is th at the doctrine of relative benefits applies, as the plaintiffs are in a better position than they would have been if the levee had breached. It is certainly true that in the hypothetical world where the breach occurred

, the plaintiffs would have
been far worse off, along with 10,000 other citizen s

. In the real world, however, all 10,000 other
citizens were unaffected, but the p laintiffs ’ properties were significantly damaged. The government is applying a hypothetical situation to discount the harm plain tiffs suffered in the
real world. The ce ntral purpose of the Fifth Amendment is to ensure that discrete minorities do

not bear the burden of benefits to the general public. Few cases present this problem as starkly
as this case. “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.’” Ark. Game & Fish Comm’n v. United States , 568 U.S. 23, 31 (2012) (quo ting Armstrong v. United States , 364 U.S. 40, 49 (1960))

.

Of course, it has long been a principl e that a fire department

, during times of fire

, may knock down your proper t y without compensation to stop the flames from engulfing more of the city. See generally Respublica v. Sparhawk , 1 U.S. 357, 363 (1788)

. This is an old concept. Here, of course, the problem (our fire analogue ) began over a year before the “ knock down ” or Lake flooding. The government studied the problem for a long time, and experts recommend ed
a solution

. The government thought about th e solution for quite a while, and determined it was an efficient way to solve the prob lem, with the except ion of damaging plaintiffs ’ properties

. This was economically efficient and resulted in significant benefits. Plaintiffs only ask that they

are compensa ted for their loss, which helped procure those benefits.

The government makes another series of arguments that compensation shoul d not be
awarded under the Fifth Amendment. It argue s that plai ntiff s ’ received benefits from the
government ’s actions

. There are really two benefit arguments. First there is the general benefit that comes from either the government’s building of the le vee system or the operation of the Muddy Bayou Control Structure. I t is certainly true that these struc tures benefitted the plaintiffs, most of the Mississippi Delta population

, and the region’s economy. However, one should not stop there. The United St ates’ military keeps the region from being overrun by foreign governments and perhaps pirates. Government programs benefit all citizens in various ways. If the benefits citizens get from the federal government are to be put on the scale in a taking case

, the citizen would always lose, p articularly anywhere along the several thousand miles of the Mississippi River system.

The second version of the government’s argument presents a more serious question. If
the levee had broken

, would plaintiff s have suffered more serious damage than they actually did?
It seems to this Court that the answer is clearly yes! Plaintiff s ’ property would have been totally inundated, not just the piers and boat houses. However, the Court will not conflate the real w orld
with a theoretical one. The levee did not break. A million acres were dry and snug. People5

were not in wet houses sweeping out mud

, but enjoying their normal life. They had no damage to their property. Only this small band of plaintiffs had damag e. Thus, the government argues
that the damage plaintiffs would have suffered in this never

- was world must offset the damage actually inflicted upon this group of plaintiffs in the real world. This argument seems to turn the
Fifth Amendment on its head.

B. Damages

The Takings Clause of the Fifth Amendment provides just compensation as the exclusive remedy . “The guiding principle of just compensation is reimbursement to the owner for the property interest taken.” United States v. Va. Elec. & Power Co. , 365 U.S. 624, 633 (1961). Landowners are entitled to the fair market value of their land, which is “‘what a willing buyer would pay in cash to a willing seller’ at the time of the taking.” United States v. 564.54 Acres of
Land , 441 U.S. 506, 511 (1979) (quoting United States v. Miller , 317 U.S. 369, 374 (1943)). “[I] n the easement context, the conventional method of valuation is the before

- and

- after method, i.e., the difference between the value of the property before and after the Government’s easemen t was imposed.” Rasmuson v. United States , 807 F.3d 1343, 1345 (Fed. Cir. 2015).

The Court finds that a “before

- and

- after” Fair Market Value method of calculation for each plaintiff’s property should be used to determine just compensation. However, the Court finds that the “before” calculation should not rely on the hypothetical expectation that the levee would have breached. Accordingly, the Court finds that the “before” calculation should be the value of the property immediately before the flooding o f Eagle Lake. For these valuations, the Court bases its just compensation award on Mr. Parker’s findings.

Plaintiffs and defendant submitted damage calculations in their Post

- Trial Briefs relying on different expert witness opinions

. See generally Joint Exs. 42, 43, 46, 47 ; see also Joint Exs. 156, 157, 158; Tr. 1535:4. Defendant’s and plaintiffs’ figures calculated the damages to each individual plaintiff’s property. See generally Joint Exs. 42, 43, 46, 47. Plaintiffs’ damages calculations were performed by plaintiffs’ real estate appraisal expert, Robert Crook (“Mr. Crook”)

, in 2016

. See P l s

. ’ Brief at 22. For each individual property, Mr. Crook calculated the difference in the Fair Market Value of the property befor e the flood and the Fair Market Value of the property after the flood. See id. D uring his appraisal , Mr. Cr ook discovered the following
valuations for damages to plaintiffs’ properties

. First, Mr. Crook found that the Fair Market Value of the damage to the Alford property was $26,000. See Joint Ex. 42

. The damage to the Wilson property was found to be in the amount of $19,400. See Joint Ex. 43. In addition to damages allocated to the Wilsons’ residential property, the Wilsons claim $36,404 in lost profits from their business due to the flooding. See id

. Next, Mr. Crook determined that the just compensation due to the Brinkmanns was $71,500. See Joint Ex. 46

. Mr. Crook also evaluated

t he property owned by Eagle Lake View Pro pert ies, LLC of which Kelly MacNealy is the managing member

. See Joint Ex. 47 . For the Eagle Lake View Property, Mr. Crook utilized the sales comparison approach in determining the “before” market value of the property, which relies on the “highest and best value” use of the property in determining valuation

. See Joint Ex.7

Accordingly, the Court awards plaintiffs $168,000 plus intere st

, using the interest
calculations set forth in the Declaration of Taking s Act from April 30, 2011 until the date of
payment

. See 40 U.S.C. § 3116. The parties are directed to submit, within sixty days, a stipulation as to the interest at the end of the sixty

- day period, as well as attorneys’ fees pursuant

to the Uniform Relocation Act.

III. Conclusion

For the reasons set forth above, plaintiffs are awarded $168,000 plus interest. The Court directs the Clerk of Court to enter judgment in favor of plaintiffs, consistent with this Order

.

IT IS SO ORDERED.

s/ 

# Loren A. Smith

Loren A. Smith, Senior Judge