# In the United States Court of Federal Claims

No. 18-cv-1141L (Filed: August 30, 2019)

JACKSON-GREENLY FARM, INC. et al

.,

Plaintiffs,

v.

THE UNITED STATES OF AMERICA,

Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Keywords: Motion to Dismiss; RCFC 12(b)(1); Statute of Limitations; 28 U.S.C. § 2501; Stabilization Doctrine; Takings Clause; Flooding.

Ethan A. Flint , Flint Law Firm, LLC, Edward sville, IL, for Plaintiffs. Adam M. Riley , Flint Law Firm, LLC, Edwardsvi lle, IL, Of Counsel.

Edward C. Thomas , Natural Resources Section, Envir onment & Natural Resources Division, U.S. Department of Justice, Washi ngton, DC, for Defendant, with whom was Jean E. Williams

, Deputy Assistant Attorney General.

OPINION AND ORDER

KAPLAN, Judge.

Plaintiffs in this Fifth Amendment taki ngs case own land on or near Dogtooth Bend Peninsula in Alexander County, Illi nois. They allege that the Army Corps of Engineers’ practice of placing an increasing number and variety of “river training structures” in the Middle Mississippi River (“MMR”) has caused water levels to rise, resulting in recurrent atypical flooding of their property. Accord ing to Plaintiffs, the subjecti on of their property to such flooding became a permanent taking after 2016, wh en the federal government declined to provide financing to repair th e Len Small Levee (“the levee”), which had previously provided some flood protection to the Dogtooth Bend area.

The government has moved to dismiss Plain tiffs’ amended complaint on the grounds that
their claims fall outside of the Tu cker Act’s six-year statute of lim itations, and that, in any event, the Plaintiffs have failed to state a claim upon which relief can be granted. For the reasons set forth below, the Court agrees with the government that Plaintiffs have fa iled to carry their burden of establishing by preponderant evidence that their claims did not accrue before August 3, 2012, six years before they filed this suit. Ther efore, the government’s motion to dismiss is

GRANTED and this case will be DISMISSED without prejudice for lack of subject-matter jurisdiction.2 BACKGROUND 1

I. Dogtooth Bend and the Len Small Levee

Each of the sixty-two plaintiffs in this ac tion owns land that is located in Alexander County, Illinois, the southernmost county in the state. Am. Compl. ¶¶ 19–67, ECF No. 11. Alexander County is bordered by th e Mississippi River to the west and the Ohio River to the east. As depicted in a map supplied by the government—and reproduced below as Figure 1— Plaintiffs’ property is concentrat ed near a southwestern region of the county known as “Dogtooth Bend” Peninsula, which is surrounded on three side s by the Mississippi River. See Def.’s Mot. to Dismiss (“Def.’s Mot.”) Ex. 9, at 140A–41A, ECF No. 19-9; id. Ex. 16, at 2, ECF No. 19-16 (Alexander County map with index showing locations of Plaintiffs’ property). The primary land use in the area is agricult ural. Id. Ex. 9, at 144A.

1 The facts set forth below are based on the alle gations in the amended complaint, as well as jurisdictional facts drawn from the evidence submitted by the parties.3 Figure 1

The Len Small Levee is a non-fe deral levee located on the banks of the Mississippi River along the western edge of Dogtooth Bend Peninsula. Def.’s Mot. at 9 (citing id. Ex. 7, at 8, ECF No. 19-7). The first portion of the levee was bui lt by the State of Illin ois after a “catastrophic flood” impacted the region in 1927. Am. Compl. ¶¶ 146, 148; Def.’s Mot. Ex 8, Ex. I at 1, ECF No. 19-8. When built, the levee was only 2.38 mi les long, running from approximately miles 31.5 to 34.5 of the river. Def.’s Mot. Ex. 8, Ex. I at 1.4 In 1969, local interests expanded the le vee by 5.3 miles upstream and 7.9 miles downstream, so that it spanned the length of the river from approxi mately mile 24 to mile 39. Id. The purpose of the 1969 expansion “was to provi de a ‘limited degree of flood protection and lessen the highly erosive action of the river sweeping across the area and possibly cutting a new
channel.’” Id. at 2. Sometime after the flood of 1973 (described below), the Levee District expanded the levee further downstream to its ma ximum length, from approximately mile 20 to mile 39, as depicted below in Figure 2. See Def.’s Mot. Ex. 10, at 2, ECF No. 19-10.

Figure 2

The levee “was designed to deflect high velo city floodwaters of the Mississippi River away from agricultural land at the upstream part of the bend.” Id. Ex. 11, at 5, ECF No. 19-11. It5 does not, however, supply a “closed system of pr otection” (i.e., it does not “tie back” to high ground). Id. Ex. 8, Ex. I at 2, 7; id. Ex. J at 43. 2 For that reason, the downstream part of the peninsula is not protected by the levee and has been subject to freque nt “backwater” flooding
both before and after the levee’s construction. Id. Ex. I at 1–2.

A March 1984 report prepared by the Corps desc ribed some of the vulnerabilities in the flood protection offered by the Len Small Levee. See generally id. Ex. K. It noted that “[d]uring high stages of the Mississippi River, flood waters can break through the [] levee and flow overbank between river miles 16 and 31, bypassing a bout 15 miles of normal channel.” Id. at 59. In addition, according to the report, studies of U.S. Geological Survey maps and aerial photographs showed “past tendencies for the rive r to cross Dogtooth Bend at about river mile 28,” within the area that the levee was supposed to protect. Id. The resulting flooding in Dogtooth Bend, the Corps observed, “cause[d] crop damages, erosion of the land, deposition of sand on the farmland, and damages to farmstead pr operty, farm stock and rural roads.” Id. The report predicted that absent improvements, pe riodic flooding, erosion, and deposition of sand
would continue to occur in the levee area because of “lack of continuous levee protection” and the “inadequate height” of the existing levee. Id. at 68.

In a November 1992 memorandum, Gary R. Dyhouse, the Chief of the Corps Hydrologic Engineering Section, discussed th e extent to which the levee pr ovided protection against fiveand ten-year floods. He noted that the levee “is actually categorized more as a training dike, th[a]n as a levee, since it parallels the Miss issippi River from about Miles 39–22 and does not tie back to high ground.” Id. Ex. J at 43. He observe d that the levee’s “main value is to prevent Mississippi overflows from crossi ng the peninsula, scouring some areas and depositing sediment over others.” Id. Beyond that, he noted, “any ov erbank flows result in flooding some of the 23,000 acres shown as ‘protected’, since the river can flood around the end of the dike.” Id. Further, because “much of the 23,000 acres are ve ry low-lying (elevations of 320–325), frequent flooding occurs.” Id.

Mr. Dyhouse compared five- and ten-year interv al flood profiles to the ground elevations
of the area behind the levee. Five -year recurrence interval floods , he observed, would result in elevations of 326–328 NGVD, which would mean that the entire area south of Horseshoe Lake would be inundated by such floods. Id. 3 And while 2000–3000 acres in the northwestern portion of the area would not be flooded, soil moisture levels and road flooding “would likely prevent significant agricultural usage.” Id. A ten-year flood, Mr. Dyhouse observed, “would result in
flood elevations of 330–331 in the area and would essentially flood the entire area behind the levee.” Id. This evaluation, Mr. Dyhouse obser ved, was confirmed by an examination of the
effects of flood events in the ar ea in May 1983 and in 1990. Id. at 43–44.

2 The Court cites to internal page numbering where possible; ot herwise cited page numbers are
taken from the ECF header affi xed during the filing process.

3 As shown by Figure 1, Horseshoe Lake lies to the south of the town of Olive Branch on Dogtooth Bend Peninsula. See also June 26, 2019 Hr’g Tr. (“Tr.”) at 8, ECF No. 32.6 II. History of Flooding in the Dogtooth Bend Area

“[T]he farmers and homeowners who settled in [the] early 1800s on the bottomlands of . . . Dogtooth Bend peninsula have battled floodi ng from the Mississippi River for the last 200 years.” Id. Ex. 9, at 140A. Indeed, according to the State of Illinois, Alexander County experienced major floods nineteen times between 1844 and 2011. Id. Ex. 7, at 1. On a number of these occasions, and again most recently in 2016, the river’s floodw aters overtopped and/or breached the levee, causing significant damage to land, structures, and roads in the Dogtooth
Bend area.

Thus, the original levee—which, as noted, extended only from approximately miles 31.5 to 34.5 on the river—sustained flood damage in 1929, 1931, and 1935. See id. Ex. 8, Ex. I at 1. Local interests repaired that damage. Id. The levee was again “severely damaged by floods” in 1943, 1944, and 1947. Id. The “[d]amage from the 1943 fl ood was so severe that an essentially
total reconstruction of the levee was made.” Id. On this occasion, the Corps of Engineers, St. Louis District, performed the repairs. Id.

Floodwaters breached the levee again on a num ber of occasions after its significant expansion in 1969. In 1973, for example, damage from floodwaters included “30 breaks and severe crown and slope scour caused by overtopping, and wave wash erosion.” Id. at 2.

After the 1973 event, the Corps conducted a cost–benefit analysis and approved federal assistance to repair the damage to the levee purs uant to its authority und er Public Law 84-99. Id.

at 4. 4 Assistance was approved because, among other reasons, the Corps determined that the benefit-to-cost ratio of repairing the levee was 1.10 to 1. Id. The total estimated cost of the repairs was $794,100, $774,300 of which would be provi ded by the federal government, with the remainder borne by local interests. Id. at 3–4.

The levee area was flooded at least seven mo re times between 1981 and 1992. Id. Ex. J at 43. The May 1983 flood referenced in Mr. Dyhouse’s evaluation of the levee (discussed above), “inundated nearly all of the ar ea.” Id. at 43–44. The May 1990 event to which he referred
flooded most of the levee area s outh of Horseshoe Lake. Id.

During the spring and summer of 1993, “r ecord flooding inundated much of the Mississippi River Basin.” Id. E x. 11, at iii. On July 15, 1993, th e levee broke be tween miles 34 and 35. Id. at 5–6. By August 8, “[a]ll the Dogtooth Island bend area south of the Miller City Road was inundated.” Id. at 9. Although the wa ters receded, the area was then “affected substantially by three additional floods”—one in late September through early October, another

4 Pub. L. 84-99 “allows the Corps to repair and/or rehabilitate any qualified flood control project [] whether it is federally constructed or priv ately owned.” Dep’t of the Army, Rehabilitation
Assistance for Non-Federal Flood Control Projects at 3 (Oct . 2009), available at https://www.spa.usace.army.mil/Por tals/.../PL84-99-Rehab_Assist_N FFC_Projects.pdf; see also 33 CFR Subpart D. Rehabilitation Assistance for Flood Control Works Damaged by Flood or Coastal Storm: The Corps Rehabi litation and Inspection Program.7 in mid-November, and a third in April 1994. Id. The first two floods created a high volume of flow through the levee break, resulting again in inundation of most of the area south of Miller City Road. Id. The April 1994 flood destroyed about 1000 meters of newly reconstructed levee.
Id. at 10.

During the peak of the 1993 flood, “as much as 28 percent of the Mi ssissippi discharge flowed through the break.” Id. at 1. “With veloc ities as great as 300 centimeters per second, the flow through the levee break was able to scour an area 2,200 meters long to a maximum depth of more than 20 meters.” Id. Further, “[t]ransport of sediment from the main channel, through the break, resulted in net deposition of at least 8.2 cubic meters of sand.” Id.

By letter of September 20, 1993, and in the wake of the July 1993 breach in the levee, the Len Small Levee District’s three commissioners (two of whom—David Willis and James Taflinger—are plaintiffs in this action) requested that the Corps of Engineers’ Mississippi River Commission provide assistan ce. Id. Ex. 8, Ex. L at 223–25. They noted that as a resu lt of the July breach, hundreds of residents of southwestern Al exander County had been forced from their homes. Id. at 223. Further, “[a]pproximately 37,000 acres of prime farmland were flooded and
the livelihood of dozens of farmers and their fa milies was lost.” Id. “Also affected by the floodwaters was a portion of Olive Branch, IL fo rcing several more families from their homes and closing businesses.” Id. The commissioners “conservatively estimated” the damage at $15
million. Id.

The commissioners explained that, as the Mississippi again approached flood stage, “water continues to pour into the area and t housands of acres remain underwater.” Id. They
warned that it was “vital that the levee be restored to its original integrity.” Id. Noting that the local area was in economic distress, as well as the complexity of the problem faced, the commissioners requested that the Mississippi River Commissioners “empower a task force to
formulate a solution to this dilemma.” Id. at 224.

Federal financial assistance was provided in the wake of the 1993–1994 flooding and the levee was again repaired. Decl. of David Willis (“Willis Decl.”), Pls.’ Resp. to Def.’s Mot. (“Pls.’ Resp.”) Ex. 2 ¶¶ 6, 8, ECF No. 22-2. N onetheless, in 2008 and 2011, Alexander County was again affected by severe flooding events . Def.’s Mot. Ex. 7, at 1. The May 2011 flood caused significant damage to the levee, resulting in “breaches and craters in five places.” Id. Ex. 9, at 142A. After the levee was breached, more than 200 structures—most of them residences— “were inundated with up to six feet of water,” and road closures were widespread for several days. Id. Ex. 7, at 1; id. Ex. 15, at 3, ECF No. 19-15. This flo od event caused over $13 million in damage. Id. Ex. 15, at 3.

In the aftermath of the 2011 flood, the Federal Emergency Management Agency (“FEMA”) considered a proposal to provide $12 m illion to buy out and relocate residents of the
town of Olive Branch who lived in the floodplain. Id. The proposal to take residents “up and off the floodplain” was based on the “repeated flood damages including extensive damage after levee breaches in the Len Small Levee System during the 1993, 2008 and 2011 floods.” Id. Ex. 7, at 1; id. Ex. 14, at 5, ECF N o. 19-14. The plan was modeled in part after the example of Valmeyer, Illinois, which relocated after the 1993 flood. Id. Ex. 14, at 5. As of October 18, 2011, approximately 90% of the property owners in the town had signed up to participate in the8 buyout, including three of the plaintiffs in this ca se (Kenneth and Sherry Pecord, owners of the Horseshoe Bar and Grill, and John Wissinger). Id.; Def.’s Mot. at 20–21 & n.20 (citing Am. Compl. Ex. 1, at 1, ECF No. 11-1; Def.’s Mot. Ex. 7, at 5–7). The record before the Court does not show whether the relocation plan ever pro ceeded beyond the explorati on and planning stages.

The federal government again provided assistan ce to the local community to repair the levee after the 2011 flood. Willis Decl. ¶¶ 7–8. In early 2016, however, the area experienced another major flooding event. Average rainfall for the last two months of 2015 had been the highest amount ever recorded in Illinois and Missouri. Def.’s Mot. Ex. 3, Ex. A at X-30. The high-water mark at the Cape Girardeau gauge reached 48.86 feet in January 2016, breaking the previous 1993 record. Id. Ex. 9, at 140A. On January 2, floodwaters caused a one-mile long breach in the Len Small Levee. Id. at 142A. The water that poured through the breach “scoured out a crater lake and deep gullies into adjacen t agricultural lands.” Id. It flowed onto Dogtooth Bend Peninsula, creating a new channel across the land and reentering the main river on the other side of the peninsula. Id. The floodwater s took a “shortcut,” bypassing about fifteen miles of river (the bend surrounding the peninsula) an d temporarily creating an island which isolated the rest of the Dogtooth Bend region. Id. The fl ooding also deposited millions of tons of sand on more than 1500 acres of farmland and buried approximately seven to eight miles of roadway in the area. Id. at 143A; see also Am. Compl. ¶¶ 159–60.

The community again requested federal assistance to repair the levee. This time, on July 21, 2016, the Corps denied the request. Willis De cl., Ex. A at 4. The Corps estimated that $16,596,000 would be needed to complete repairs to th e levee. Id. It concluded that the benefitto-cost ratio for the repair effort was 0.78 to 1.0. Id. Because the ratio was not a favorable one, the Corps found that the repair project did not m eet the program’s eligibility requirements. Id.; see 33 C.F.R. § 203.44(b) (“A flood control project is eligible for Rehabilitation Assistance provided that the project is in an Active status at the time of the flood event, the damage was caused by the flood event, the work can be economi cally justified, and the work is not otherwise prohibited by [these regulations].”).

Plaintiffs allege that without federal assistance they and ot her local stakeholders cannot finance the repair of the levee. Am. Compl. ¶¶ 152, 162–64. Thus, by August 2016, seven months after the breach, the lev ee still had “a gaping hole.” Def.’s Mot. Ex. 9, at 143A. “[T]here was little value in fixing the roads, in cleaning ou t the ditches, or moving the sand off fields; and planting crops was risky” because “[s]pring or summer floodwaters could again pour through the hole, drowning crops and covering roads, ditches, and fields with new sand and debris.” Id.

Plaintiffs allege that because the levee has not been repaired, they experienced “multiple flooding events causing severe crop loss” in 2017 and 2018. Am. Compl. ¶ 167. They further allege that, as a result of the 2016 breach, “ma ny Plaintiffs’ highly produc tive farmland has been covered by several feet of sand, ruining any agri cultural value.” Id. ¶ 184. Further, due to the flooding some or many plaintiffs cannot access their property, have suffered severe erosion of their land, have lost their homes and other build ings, and face insolvency or bankruptcy. Id. ¶¶ 187–91.9 III. Plaintiffs’ Theory of Causation

“River training structures” are used by th e Corps to reduce expenditures and minimize maintenance dredging by “re-directing the river’ s energy to achieve a de sired velocity and/or scour pattern to deepen or provide better alignm ent for the navigation channel.” Def.’s Mot. Ex. 1, at 5, ECF No. 19-1. Their purpose is to “constric t the river channel, concentrate flow, redirect sediment, and deepen and maintain the naviga ble portion of the channel.” Am. Compl. ¶ 74. 5

The Corps began building river training structures in the 180 0s and there are currently nearly 1600 such structures in the MMR. Def.’s Mot. Ex. 5, Ex. C at 10. Ninety-one percent of the structures were in place by 2000. Def.’s Mot. at 18 (citing id.). Plaint iffs allege that the “portions of the River affecting Plaintiffs’ property now include the greatest densities of dike structures, both in number and length, in the wo rld.” Am. Compl. ¶ 8. This has “chang[ed] the River’s hydrograph,” according to Plaintiffs, a nd increased the water surface elevation of the
river. Id.

Plaintiffs do not attempt to pinpoint when the river structures in the MMR became sufficiently numerous or of a t ype that caused atypical flooding. Instead, they allege that the impact of river training structures on water levels is cumulative. Id. ¶ 130. They contend that the newer structures used by the Corps since the 1990s (in particular the bendway weir) “contribute even more substantially to rising water surface el evations and flooding than their predecessors.” Pls.’ Resp. at 4, ECF No. 22 (citing Am. Compl. ¶¶ 93–94). They also contend that the mean local stage of the river has been progressively incr easing as a result of th e Corps’ addition of new
structures over time. Id. at 5.

The theory that river training structures are responsible for the severity of the flooding on the MMR is not a new one. It has been the subjec t of public discussion and debate since at least the mid-1970s, beginning in the years after th e 1973 flood, and gaining more attention through the first decades of the twenty-first centur y. See Michael A. Stevens et al., Man-Induced Changes of Middle Mississippi River, 101 J. Waterways, Harbors & Coastal Engineering Division 119–33 (1975); C.B. Belt Jr., The 1973 Flood and Man’s Constriction of the

5 The most common river training structure in the MMR is the wing dike, which extends perpendicularly from the river bank into the rive r and which the Corps has been constructing in the MMR since the nineteenth century. Am. Compl. ¶¶ 76–77. More re cently, the Corps has placed chevrons (arch-shaped dikes), S-dikes, an d W-dikes in the MMR. Def.’s Mot. Ex 1, at F21; Am. Compl. ¶ 98 (photograph of several chevr ons); Def.’s Mot. Ex. 5, at Exs. F & H, ECF No. 19-5 (photographs of W-dike a nd S-dike). These structures ar e placed in the middle of the river and function similarly to wi ng dikes to maintain the naviga tion channel. See Def.’s Mot. Ex. 1, at F-20 to F-21; Am. Compl. ¶ 98, Def.’s Mot. Ex. 5, at Exs. F & H. The final type of structure, the bendway weir, was introduced in the MMR in 1989. Def.’s Mot. Ex. 1, at F-20 to F-21. A bendway weir is “a low-level, fully submer ged rock structure that is positioned from the outside bankline of a river bend and angled upstrea m toward the flow.” Id. at F-20; id. Ex. 5, at Ex. I (drawing of a bendway weir).10 Mississippi River, 189 Sci. 681–84 ( 1975); see also Am. Compl. ¶ 79; Def.’s Mot. Ex. 1, at A-8 (citing sources). The Corps itself has studied th e effect of river trai ning structures on water elevation levels since the 1930s, but has consistently concluded that the theory lacks a valid scientific basis. See gene rally id. Ex. 4, ECF No. 19-4.

The theory that the severity of the floodi ng in the Dogtooth Bend area has been caused by the proliferation of rive r training structures in the MMR has also received significant attention in the press. In March 2008, three pr ofessors from Southern Illinois University (“SIU”) published an editorial in the St. Louis Post-Dispatch in wh ich they “detailed what they consider to be a major threat to the St. Louis-Metro East Missi ssippi River corridor, which also includes
communities farther down the rive r to Cairo[, Illinois].” Id. E x. 23, at 2, ECF No. 19-23. That
threat was “the construction of river structures,” which they said “exacerbate[d] flooding” and “contributed to the unprecedente d levels of the 1993 flood.” I d. Another local news article published on August 28, 2011 quoted Dr. Nicholas Pint er, one of the SIU professors, who stated that “[t]he problem in particular for Southern Il linois is our stretch of the river is the most densely wing-diked of any river in the world, that I’ve been able to find” and that “flood levels have increased enormously . . . . At its worst sp ot, 17 feet higher for the same storm upstream
than a flood would have been in the mid-19 th century.” Id. at 7. Dr. Pint er was also quoted in a June 2008 Time Magazine article, opining that recent floods in the MMR were caused by river training structures whose use had significantly increased water levels. Id. Ex. 21, at 2–4, ECF No. 19-21. The editorial board of “St. Louis Today” in an August 2010 column recommended that before the Corps built any more structures , an independent review should be conducted by the National Academy of Sciences in light of “[t]wo decades of pee r-reviewed scientific
research” which had shown that river structur es “worsen flooding.” Id. Ex. 24, at 3, ECF No. 19- 24; see also id. Ex. 22, at 2–4, ECF No. 19-22 (20 08 Salon article summarizing theories of SIU professors regarding link between river training structures an d flooding in the MMR region).

In October of 2011, Dr. Pinter pr esented his concerns in test imony before the U.S. Senate
Committee on Environment and Public Works. See generally id. Ex. 14. During his testimony,
Dr. Pinter attributed the “reco rd crests” of the river in 1993, 1995, 2008, and 2011 to the Corps’ construction of river training structures, which he observed had “the unintended effect of raising flood levels up to 15 feet.” Id. at 4.

A few months later, in December 2011, GAO issued a report entitled “Mississippi River: Actions Are Needed to Help Resolve Environm ental and Flooding Concer ns about the Use of River Training Structures.” See genera lly GAO-12-41 (December 2011), available at https://www.gao.gov/assets/590/586782.pdf. In that report, GAO recommended that the Corps update its research and perfor m new environmental assessments concerning the relationship
between the construction of river training structures and the severe flooding in the MMR. Id. at

48–49.

Most recently, in 2014, environmental groups brought a lawsuit ch allenging several Corps environmental assessments which had concl uded that river training structures did not significantly impact water surface elevations in the MMR. See generally Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, No. 14-590- DRH-DGW, 2014 WL 6685235 (S.D. Ill. Nov. 25, 2014). The plaintiffs voluntarily di smissed their suit after the dist rict court denied their motion for a preliminary injunction that would have st opped the Corps from placing new river training11 structures in the MMR while the litigation was pending. Def.’s Mot. at 8–9. Applying the deferential standard of review applicable to cases arising under the Administrative Procedure Act, the court held that “the Corps has continua lly and extensively analyz ed the physical effects of river training structures and reasonably conclu ded that they do not imp act flood levels.” Nat’l Wildlife Fed’n, 2014 WL 6685235, at *12.

IV. This Action

Plaintiffs filed the present lawsuit on August 3, 2018. Compl., ECF No. 1. On December 3, 2018, the government filed a motion to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the Court of Federa l Claims (“RCFC”). ECF No. 10. It argued, among other things, that Plaintiffs’ claims were unt imely under the applicable six-year statute of limitations. Id. at 1, 13–29. The government also assert ed that, in the alterna tive, Plaintiffs failed to state a claim upon which relief could be granted. Id. at 1–2, 29–38.

In lieu of a response to the motion, a nd in accordance with RCFC 15(a)(1)(B), on December 26, 2018, Plaintiffs filed an amended co mplaint. ECF No. 11. Pertinent to the present motion, in the amended complaint Plaintiffs dele ted previous references to the relationship between the river training structures and the floods that occurred in 1993 and 2011. In addition, whereas in the original complaint Plaintiffs alle ged that they had been deprived of the use and enjoyment of their land “due to a taking by r ecurrent flooding from breaches in the Len Small levee and other atypical flooding ev ents,” in the amended complaint they stated that they had suffered “a taking by recurrent flooding after th e 2016 breach in the Len Small Levee.” Compare Compl. ¶¶ 27–52, with Am. Compl. ¶¶ 21–67.

Thus, in their amended complaint, Plaintiffs allege that were it not for the number and variety of river training structur es that the Corps ha s placed in the MMR, floodwaters would not have breached the Len Small Levee in 2016. See, e.g., Am. Compl. ¶ 11. They also allege that their property is now unprotected because the federal government declined to provide federal financial assistance to repair the levee after the 2016 breach. Id. ¶ 12; see also Willis Decl. ¶¶ 10–13. Further, they claim that their “unprotected pr operty is now inunda ted with floodwaters with greater frequency, for longer durations, and at unusual times of the year in a manner that
deviates from histor ical flooding patterns .” Am. Compl. ¶ 12.

The “atypical flooding,” Plaintiffs claim, “is a nd has been a direct and foreseeable result of the Army Corps of Engineers’ gradual constr uction of Structures in the Rivers.” Id. ¶ 197. Plaintiffs further allege that “[t]he Corps, as professional engineers, knew or should have known
that the cumulative result of the number and conf iguration of its river training Structures would
be the breach of the Len Small Levee and the fr equent and recurring overflow of the River onto Plaintiffs’ private property.” Id. ¶ 13.

Plaintiffs further assert in their amende d complaint that the flooding they have experienced since 2016 has caused severe crop loss, and has disrupted and interfered with their “reasonable, investment-backed expectations for the intended and customary use of their land and other property.” Id. ¶ 14. They allege that the Corps has theref ore taken their property for a public use without just compensatio n, in violation of the Fifth Amendment’s takings clause. See id. ¶¶ 15–17.12 On March 1, 2019, the government filed a mo tion to dismiss the amended complaint. ECF No. 19. The government again asserted that Plaintiffs’ claims are barred by the Tucker Act’s six-year statute of limitati ons and that, in any event, they have failed to state a claim on which relief may be granted. See generally Def.’s Mot. Oral argument was held on the government’s motion on June 26, 2019.

For the reasons set forth below, the Court c oncludes that Plaintiffs’ claims accrued more than six years before they filed the present act ion. The government’s motion to dismiss for lack of subject-matter jurisdiction is therefore GRANTED

.

DISCUSSION

I. Jurisdictional Principles

The Tucker Act, 28 U.S.C. § 1491(a)(1), c onfers jurisdiction on th e Court of Federal Claims to hear suits for compensation under th e Fifth Amendment’s Takings Clause. See, e.g., Boling v. United States, 220 F.3d 1365, 1370 (Fed. Cir. 2000) (citing Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 11 –12 (1990)). Such suits, however, must be “filed within six years after [the takings] claim first accrues.” 28 U.S.C. § 2501. Th is six-year limitations period “is a jurisdictional requ irement attached by Congress as a condition of the government’s waiver of sovereign immunity and, as such, must be st rictly construed.” Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1576–77 (Fed. Cir. 1988).

In determining whether subject-matter jurisdic tion exists, the Court “must accept as true all undisputed facts asserted in the plaintiff’s complaint and draw all reasonable inferences in favor of the plaintiff.” Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011); see also Estes Exp. Lines v. United St ates, 739 F.3d 689, 692 (Fed. Cir. 2014) (same). Plaintiffs, however, have the burden of establ ishing subject-matter juri sdiction by preponderant evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). Therefore, where—as here—the government challeng es a plaintiff’s allegations of jurisdiction in a motion to dismiss under RCFC 12(b)(1), only t hose factual allegations that the government does not controvert are accepted as true. Shos hone Indian Tribe of Wind River Reservation v. United States, 672 F.3d 1021, 1030 (Fed. Cir. 2012); see also Banks v. United States, 741 F.3d 1268, 1277 (Fed. Cir. 2014) (noting that when review ing a motion to dismiss for lack of subjectmatter jurisdiction, the court accep ts only uncontroverted factual allegations as true) (citing Gibbs v. Buck, 307 U.S. 66, 72 (1939)). Where juri sdictional facts are co ntroverted, the Court “may consider relevant evidence in order to re solve the factual disput e.” Reynolds, 846 F.2d at 747; see also Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991) (finding that a court may “inquire into jurisdictional facts” in ru ling on a motion to dismiss under RCFC 12(b)(1)).

A takings claim accrues when “all the events wh ich fix the government’s alleged liability have occurred and the plaintiff was or should have been aware of their existence.” Hopland Band of Pomo Indians, 855 F.2d at 1577. Where a perman ent taking is alleged, “the key date for accrual purposes is the date on which the plaint iff’s land has been clearly and permanently taken.” Boling, 220 F.3d at 1370 (citing Seldovia Native Assoc., Inc. v. United States, 144 F.3d 769, 774 (Fed. Cir. 1998)). In the flooding contex t, a permanent taking occurs when flooding “creates a ‘permanent liability’ be cause of ‘intermittent but inevita bly recurring overflow.’” Cary13 v. United States, 552 F.3d 1373, 1381 (Fed. Cir. 2009) (quoting United States v. Cress, 243 U.S. 316, 328 (1916)). A claim for a permanent taki ng through intermittent but recurrent flooding therefore accrues when “it first bec[omes] clear ly apparent by the passage of time that the intermittent flooding [is] of a permanent nature .” Barnes v. United States, 538 F.2d 865, 873 (Ct. Cl. 1976).

II. Plaintiffs’ Claims Accrue d More Than Six Years Before They Filed This Suit

Plaintiffs allege that th eir property has been permanently taken through recurrent flooding that was the direct and foreseeable re sult of government action—i.e., the Corps’ practice of placing an increasing number and vari ety of river training st ructures in the MMR. Plaintiffs allege that their cause of action for a permanent taking accrued in 2016, when, “as a result of increased [water surface elevations] caused by the Corps’ Structures, the Len Small Levee breached and caus[ed] destruction in 201 6 never before seen.” Am. Compl. ¶ 182. They further allege that “the Corps structures have caused and will continue to cause inevitably recurring flood events of longer durations, wh ich have significantly impaired the use of agriculture and recreational property since the 2016 Len Small breach and will continue to do so.” Id. ¶ 183.

The government contends that Plaintiffs have failed to meet their burden of showing that
their claims were filed within the Tucker Act’ s six-year statute of lim itations. It argues that Plaintiffs knew or should have known before Augus t 3, 2012 (six years before they filed suit) that: 1) the Corps had already bui lt hundreds of river training struct ures in the Mississippi River; 2) there had been multiple breaches of the Len Small Levee, which had resulted in damage to property located on Dogtooth Bend Pe ninsula; and 3) the area ha d long been subject to flooding of the same or a similar magnitude and durat ion. In addition, the gove rnment argues that
Plaintiffs knew or should have known about their th eory that the river tr aining structures were responsible for the increase in wate r surface elevations before August 3, 2012.

The Court agrees with the government that Pl aintiffs have failed to produce sufficient evidence—indeed any evidence—to show that th eir claims accrued after August 3, 2012. Thus, it is undisputed that the Dogtooth Bend area in which Plaintiffs’ properties are located has been subject to frequent flooding since the nineteenth century. It is also undisputed that—even leaving aside the numerous flood events that occurred during the early and mid-twentieth century—the area was subjected to severe flooding more recently in 1973, 1993, 1994, 2008, and
2011 as a result of breaches or failures of the levee.

Further, the evidence shows that Plaintiffs knew or should have known before 2012 that the levee afforded only limited protection against the inundation of their properties by floodwaters. For one thing, as noted above, the levee had been periodically breached. For another, the levee provided no prot ection at all against backwater flooding, and, as explained in a 1984 Corps report, was not high enough to hold o ff the rise of floodwaters that would occur during even five- and ten-year flood events . See Def.’s Mot. Ex. 8, Ex. K at 59, 68.

Further, as shown above in Figure 1, many of Plaintiffs’ properties are located in the vicinity of the town of Olive Branch, Illinois. The government has introduced evidence showing that—after the flood of 2011, and because of co ncerns about recurrent flooding—consideration14 was given to offering residents whose propert y was in the floodplain a buyout and relocating them to higher ground. Three of the plaintiffs in th is case signed up to receive that relief. This provides further evidence that Plaintiffs knew or should have known at least by the time of the 2011 flood that—irrespective of whether the levee was repaired—it would not prevent future catastrophic flooding from ta king place. Indeed, such flooding did occur only five years later, in

2016.

Plaintiffs contend that until 2016, their pr operty was not subject to flooding on a sufficiently frequent basis to support a perm anent-taking claim. Although they do not deny the frequency of the backwater flooding of the area, they point out that the major floods of 1973, 1993–1994, and 2011 occurred decades apart.

To be sure, both the Federal Circuit and its predecessor court have observed that “[i]solated invasions, such as one or two floodings . . . do not make a taking.” Eyherabide v. United States, 345 F.2d 565, 569 (Ct. Cl. 1965); see also Ridge Line, Inc. v. United States, 346 F.3d 1346, 1357 (Fed. Cir. 2003); Barnes v. United St ates, 538 F.2d at 870. But as Judge Allegra observed in Quebedeaux v. United States, “[o]n cl oser examination, the flooding cases seem to focus on periodicity only as one indication as to whether defendant has appropriated an interest for itself in the affected property.” 112 Fe d. Cl. 317, 323 (2013). “While a single flooding may
indicate that such an interest has not been taken, that conclusion depends upon whether the flooding was truly an ‘[i]solated invasion,’ Eyhe rabide, 345 F.2d at 569, as opposed to an event that characterizes a ‘permanent liability to inte rmittent but inevitably recurring overflows.’” Id. (quoting Cress, 243 U.S. at 328). In the latter case, “it is conc eivable that [the government’s] actions may be viewed not as an ‘isolated invasi on,’ but rather as rese rving a flowage easement over the affected property.” Id.

Judge Allegra’s reasoning is appl icable to Plaintiffs’ claims. Certainly by the time of the 2011 flood, it was obvious that the area was liable to “intermittent but inevitably recurring overflows” (or breaches) of the levee, and that the breaches that had occurred were not isolated events. See Cress, 243 U.S. at 328. Indeed, the very premise of Plaintiffs’ theory of causation is that the Corps’ use of river training structures has caused and will continue to cause recurrent flooding of their land.

In addition, the Court finds that Plaintiffs knew or should have known before August 3, 2012: 1) that the Corps had by then placed hundreds of river training stru ctures in the MMR; and 2) that—assuming the validity of Plaintiffs’ theo ry—those structures were the cause of the floods that had breached or overtopped the levee in previ ous years. Indeed, in th eir original complaint,
Plaintiffs attributed the breaches of the levee in 1993 and 2011 to the Corps’ use of river training structures. Compl. ¶¶ 175, 178. While they have not included those allegati ons in their amended complaint, they also have not disavowed them. No r have they, in response to the government’s motion, provided any evidence to sh ow that the effect of the rive r training structures on water
levels did not cause the flood events that occurred before 2016—i.e., in 1993, 1994, 2008, and

2012.

In their opposition brief, Plaintiffs assert that since the 1990s, “the Government has introduced new types of structures that contribute mo re substantially to flooding than earlier varieties.” Pls.’ Resp. at 14 (citing Am. Compl. ¶¶ 90, 93–94). They also assert that “the full15 impact of a river training stru cture is not immediately reali zed, but increases over time, as sediment gradually accumulates on or around the structures.” Id. at 15 (citing Am. Compl. ¶¶ 130–31). In their brief they speculate that “river stru ctures built at the end of the last century may only now be reaching the point of meaningful impact .” Id. This last assertion is not supported by any evidence. Moreover, the Court does not unders tand Plaintiffs to be arguing that it was only after 2016 that the number and variety of rive r training structures in the MMR reached sufficiently critical mass to cause atypical fl ooding in the Dogtooth Bend area. Instead, they argue that before 2016 they could not have known that the prior floods caused by the structures had resulted in a permanent taking because they had been able to rebuild the levee each time with federal assistance. The permanent taking oc curred, they argue, when the federal government did not provide financial assistance and they were left vulnerable to the more frequent and severe flooding that they allege has since oc curred without the levee’s protection.

In fact, the theory that river training struct ures caused water leve ls to rise on the MMR has been the subject of academic discussion si nce the mid-1970s. Moreover, there was local and national news coverage both be fore and shortly after the ma jor flood event in 2011 concerning
the contribution of river traini ng structures in the MMR to th e flooding that had occurred in 1993, 2008, and 2011. The theory also surfaced in congressional testimony and was discussed in a GAO report that was issued in December 2011. B ecause information about the effect of river training structures on water levels was easily available to Plainti ffs through public sources before August 3, 2012, they cannot assert i gnorance of their claim prior to that date. See Yankton Cty. v. United States, 135 Fed. Cl. 620, 630 (2017) (“‘A pa rty will be charged with knowing any facts that are discoverable in public records, and igno rance of one’s legal ri ghts arising from those facts is not a sufficient excuse to justify’ su spending the accrual of a claim.”) (quoting Cent.
Pines Land Co. v. United States , 61 Fed. Cl. 527, 534 (2004)).

In short, Plaintiffs have failed to produce any evidence in response to the government’s
motion to dismiss which shows that before A ugust 3, 2012 they neither knew nor should have known: 1) that their properties had been and woul d continue to be subjec t to recurrent flooding; and 2) that the flooding could be attributed to the cumulative eff ect of the Corps’ practice of using river training structures in the MMR. As such, Plaintiffs’ cause of action for a permanent taking of their property by flooding accrued before August 3, 2012.

III. The Stabilization Doctrine

Notwithstanding the foregoing, Plaintiffs atte mpt to avoid the bar of the statute of limitations through invocation of th e so-called “stabilization” doctr ine. But their reliance on that doctrine is unavailing because their claims for a permanent taking clearl y stabilized before August 3, 2012, even if—as a result of the fede ral government’s refusal to provide federal
assistance to rebuild the levee in 2016—their la nd then became subject to flooding that was more frequent and that caused greater interference with Plaintiffs’ ability to pu t the land to agricultural
and other use.

The stabilization doctrine has its genesis in United States v. Dickinson, 331 U.S. 745 (1947), and has since been refined and applied by the Federal Circuit and th is court in numerous contexts. In Dickinson, “the Supreme Court grap pled with th[e] problem” of determining the “exact moment of accrual” of a permanent-taking claim in cases where property has been taken16 by a gradual physical process. Boling, 220 F.3d at 1370. The plaintiff in Dickinson had alleged that his land was permanently taken as a re sult of flooding caused by th e federal government’s
construction of a dam. 331 U.S. at 746–47. After the dam was built, the Corps raised the river pool level in successive stages through the impoundme nt of water. Id. at 746. The Court rejected the government’s argument that the plaintiff’s ta kings claim accrued either when the dam began impounding water or later when the water was rais ed above its previous level and his land was partially submerged for the first time. It reas oned that “the source of the entire claim—the
overflow due to rises in the leve l of the river—is not a single event; it is continuous.” Id. at 749. “[T]he frequency and permanency of the fl ooding was uncertain” at the time of the first inundation of the property. Boling, 220 F.3d at 1370. “R ather than requiring the plaintiff to sue in the face of such uncertainty,” the Supreme Court held that accrual of the claim would be delayed “until the situation had ‘s tabilized’ such that the ‘consequences of the inundation have so manifested themselves that a final account may be struck.’” Id. (quoting Dickinson, 331 U.S. at 749).

As the Supreme Court later explained, Dickin son stands for the proposition that “the statute of limitations d[oes] not bar an action under the Tucker Act for a taking by flooding when it [is] uncertain at what stage in the flooding operation the land had become appropriated for public use.” United States v. Dow, 357 U.S. 17, 27 (1958). Stabilization thus occurs “when it becomes clear that the gradual process set in to motion by the government has effected a permanent taking, not when the process has ceased or when the entire extent of the damage is determined.” Boling, 220 F.3d at 1370–71; see also Mildenberger v. United States, 643 F.3d 938, 946 (Fed. Cir. 2011) (Plaintiffs may not postpone suit until after “the damages are complete and fully calculable.”).

According to Plaintiffs, their takings claims did not stabilize until after the levee was breached in 2016. They allege that “[t]hroughout the twentieth century, with the protection of the levee, farmers and landowners in southweste rn Alexander County were not significantly impacted by changes affecting the river, whatev er their cause.” Am. Compl. ¶ 151. “Even when high water levels damaged the Levee,” Plaintiffs a llege, “property owners were able to repair it with the assistance of the federal government, which limited flooding to isolated and finite events.” Id. ¶ 152. They contend th at “the permanent exposure of Plaintiffs’ lands to recurrent flooding became a reality only when the governme nt walked away from contributing to the repair of the Levee after the Levee’s 2016 breach.” Pls.’ Resp. at 9. They state that since 2016, they have for the first time become “vulnerabl e to the increasingly da maging atypical flooding events brought on by the Corps’ construction of Structures in the Rive r that had gradually become the norm while Plaintiffs had enjoye d the Levee’s protection.” Am. Compl. ¶ 164.

Plaintiffs’ arguments lack merit. “[W]hile Dickinson and its progeny recognize that takings by gradual processes presen t special difficulties, these cases represent an application of general accrual principles, rather than a br oad exception to them.” Boling, 220 F.3d at 1371. Here, the record shows, as described above, th at recurrent flooding had been “a reality” for decades in the Dogtooth Bend area before the 2016 event. To be sure, Plaintiffs have alleged— and the government does not deny—that flooding ha s occurred more fre quently since the 2016
breach and has therefore caused even more substa ntial damage. But “the proper focus in a claim accrual analysis ‘is upon the time of the [def endant’s] acts, not upon the time at which the consequences of the acts become most painfu l.’” Boling, 220 F.3d at 1371 (quoting Del. State17 Coll. v. Ricks, 449 U.S. 250, 258 (1980)). “[I]t is the uncertainty surr ounding the permanent nature of the taking, not the uncer tainty surrounding the ultimate extent of the [] damage, that is critical in determining whether the situation has stabilized.” Id. at 1372; see also Whiteland Holdings, L.P. v. United States, 141 Fed. Cl. 702, 711 (2019), reconsideration denied, No. 18- 1081L, 2019 WL 2158874 (Fed. Cl. May 17, 2019) (While plaintiffs may wait to sue until the “nature and extent of the taking” are clear, the “‘nature and extent of the taking’ refers to the taking’s permanency (or lack thereof) , not the taking’s damages quantum.”).

Further, there is no merit to Plaintiffs’ ar gument that they did not have a claim for a taking until the federal government decided not to provide financial assistance to repair the levee because their damages before then “were not ye t quantifiable and present.” Pls.’ Resp. at 12 (quoting Nw. La. Fish & Game Preserve Comm’n, 446 F.3d 1285, 1291 (Fed. Cir. 2006)). In Northwest Louisiana Fish & Game, the court of appeals stated that damages must be “quantifiable and present” in li ght of the principle that a pe rmanent-taking claim cannot accrue until there has been damage to a plaintiff’s property interests. 446 F.3d at 1291. The language does not undermine the principle set forth in Milde nberger and related cases that the stabilization doctrine does not allow plaintiffs to postpone su it until “the damages are complete and fully
calculable.” 643 F.3d at 946. 6

Northwest Louisiana Fish & Game is inapposite because Plaintiffs here suffered damage before August 3, 2012; for example, when the levee was breached or overtopped in 2011, 2008, 1993, and several earlier years. Su ch damage was “quantifiable and present” by 2011 at the latest. Indeed, the Court finds it noteworthy that Plainti ffs could have brought precisely the same takings claims they pursue here after the 2011 le vee breach, if not earlier. Instead, they chose again to seek federal assistance to rebuild the le vee, as they had in the past. Had they instead brought suit before August 3, 2012, they presumably could have requested an award of damages that would have compensated them for the de valuation of their property caused by the ongoing risk of recurrent flooding, includ ing the risk that the levee might be breached and not rebuilt.

6 In Northwest Louisiana Fish & Game, the plainti ff, a state authority responsible for maintaining a nature preserve, alleged that certain actions taken by the Corps prevented it from continuing to periodically draw down the lake in the preserve to control the overgrowth of hydrilla (an aquatic weed). 446 F.3d at 1287–88. The government argued that the plaintiff’s claim accrued in 1994 when it learned that the Corps would not allow it to draw dow n the lake. Id. at 1289. The court rejected that argument, relying on the well-esta blished principle that a takings claim does not accrue until a plaintiff has suffered damage. I d. at 1291. The damage at issue in Northwest
Louisiana Fish & Game was the “uncontrolled ov ergrowth” of hydrilla a nd that did not occur until several years after the Corps’ refusal to reduce the water level. Id. “A possible future taking of property cannot give rise to a present action for damages,” the court observed. Id. And until the hydrilla had grown to harmful le vels and the Corps refused to dr ain the lake to alleviate the harm, the court held, “damages were not ‘prese nt,’ i.e. they were still unquantifiable and speculative.” Id.18 Finally, the Court is not persua ded by Plaintiffs’ arguments that the “generic data” that the government has offered in support of its mo tion to dismiss is irrelevant because “claim
accrual under the stabilizati on doctrine is a fact-intensive parcel -specific inquiry.” Pls.’ Resp. at 2. In response to the government’s motion to dism iss, it is Plaintiffs who must produce evidence
to show that their claims did not accrue before August 3, 2012. See Reynolds, 846 F.2d at 748 (“[O]nce the [trial] court’s subjec t matter jurisdiction [i s] put in question it [is] incumbent upon [plaintiffs] to come forward with eviden ce establishing the cour t’s jurisdiction.”). Notwithstanding this obligation, Pl aintiffs have not provided the Court with any parcel-specific information that would suggest that the gove rnment’s “generic” ev idence concerning the frequency and nature of the flooding that occurr ed in the Dogtooth Bend area did not accurately convey what was happening on each of their properties.

In fact, Plaintiffs have submitted declarations from only two of the sixty-two plaintiffs who have joined this lawsuit—David Willis and Kenneth Sean Pecord. And the declarations do not show that those two plain tiffs’ properties were not subject to recurrent flooding before August 3, 2012. To the contrary, both seem to acknow ledge that their proper ties were affected, although they characterize the damage suffered as “isolated” or “limited” because on previous occasions the levee was ultimately rebuilt. Willis Decl. ¶ 8; Decl. of Kenneth Sean Pecord (“Pecord Decl.”), Pls.’ Resp. Ex. 3 ¶ 7, ECF No. 22-3. And Mr. Pecord, for one, apparently
understood in the wake of the 2011 flood that he faced recurrent flooding going forward; for that reason he sought to participate in the FEMA buyout program. See Def.’s Mot. at 20–21 & n.20 (citing Am. Compl. Ex. 1, at 9; Def.’s Mot. Ex. 7, at 5–7).

The declarations also show th at both plaintiffs decided that they could not continue to make a profit farming after 2016 because, without the levee in place, floods would occur more frequently and have more lasting conseque nces. Willis Decl. ¶¶ 13–15; Pecord Decl. ¶¶ 9– 13. But for the reasons set forth above, their real ization that their land would be flooded more frequently going forward is not inconsistent with a conclusion that they knew or should have known that their property had already b een permanently taken years earlier.

* * *

In sum, the Court finds based on the eviden ce before it that Plaintiffs’ takings claims accrued before August 3, 2012 because they knew or should have known by th at date that their property was subject to inevitably re current flooding. To the extent that there is an ov erall lack of parcel-specific evidence in the record concerning past flood-re lated damage, the burden is on Plaintiffs—not the government—to fill that void. Fo r these reasons, Plaintiffs’ claims are timebarred under the Tucker Act’s six-year stat ute of limitations and must be dismissed.

CONCLUSION

In accordance with the foregoing, the government’s motion to dismiss (ECF No. 19) is

GRANTED and this case is DISMISSED without prejudice for lack of subject-matter jurisdiction pursuant to RCFC 12(b)(1). The Clerk is directed to enter judgment accordingly. The parties shall bear their own costs.19 IT IS SO ORDERED.

s/ Elaine D. Kaplan

ELAINE D. KAPLAN
Jud g e