In the United States Court of Federal Claims

No. 14-183L

(Filed: January 9, 2020)

IDEKER FARMS, INC., et al., 

Plaintiffs,

v.

THE UNITED STATES,

Defendant.

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Motion to Amend Answer, RCFC 15;

Taking; Fifth Amendment; Affirmative 

Defense; Sponenbarger; Relative 

Benefits; Futility; Flooding

R. Dan Boulware, St. Joseph, MO, for plaintiffs. Edwin H. Smith, Seth C. Wright, and, R. 

Todd Ehlert, St. Joseph, MO, and Benjamin D. Brown and Laura Alexander, Washington, 

D.C., of counsel. 

Terry M. Petrie, Environment and Natural Resources Division, U.S. Department of 

Justice, Washington, D.C., with whom was Jeane E. Williams, Deputy Assistant Attorney 

General, for defendant. Jacqueline C. Brown, Brent Allen, Elizabeth McGurk, and Brad

Leneis, Washington, D.C., of counsel.

ORDER DENYING MOTION TO AMEND ANSWER ON THE GROUNDS 

REQUESTED

FIRESTONE, Senior Judge

Pending before the court is the United States’ motion to amend its answer 

following the Phase I trial on causation and related liability issues in the above-captioned 

case. In the Phase I decision, Ideker Farms, Inc. v. United States, 136 Fed. Cl. 654 

(2018), and in the decision on reconsideration, Ideker Farms, Inc. v. United States, 142 

Fed. Cl. 222 (2019), the court determined that the United States had caused flooding on 
2

some, but not all, of the representative plaintiffs’ properties in connection with actions 

taken by the United States Army Corps of Engineers (“Corps”) under the Missouri River 

Recovery Program (“MRRP”). Specifically, the court determined that the MRRP, which 

is designed to return the Missouri River to a more natural state, led to greater flooding on 

plaintiffs’ properties than had existed before the MRRP started in 2004.

1 Based on the 

evidence presented and as explained in the decision on reconsideration, the court 

concluded that the United States could be liable for a taking based on the changes the 

Corps has made and is continuing to make under the MRRP to meet its obligations under 

the Endangered Species Act (“ESA”), 16 U.S.C. § 1536.

The parties are now preparing for the Phase II trial to resolve any remaining 

liability issues and to determine what just compensation, if any, is due for the taking of a 

temporary or permanent flowage easement on the properties owned or leased by the 

representative plaintiffs selected for Phase II. See, e.g., Disc. Sch. And Scope of Disc. For 

Phase II Order, May 16, 2019 (ECF No. 479).2

The government filed its November 5, 2019 motion to amend its answer under 

Rule 15(a) of the Rules of the United States Court of Federal Claims (“RCFC”) pursuant 

 

1 As discussed at length in the court’s causation decision, under the MRRP, the Corps has made 

changes “to its operation of the Mainstem Reservoir and Dam System, . . . and . . . to the 

[Missouri River Bank Stabilization and Navigation Project] . . . to meet its ESA obligations 

under the 2003 [Biological Opinion].” Ideker Farms, 136 Fed. Cl. at 667-68. 

2

In the Phase I trial as discussed below the court heard testimony regarding flooding on 44 

properties owned by 44 of the 340 plaintiffs in the case. The parties have now identified 3 of 

those plaintiffs to serve as representative plaintiffs in the Phase II trial. 
3

to the court’s scheduling order. Final Disc. Sch. And Prelim. Pre-Trial Order, Oct. 17, 

2019 (ECF No. 509); Def.’s Mot. to Amend Answer (“Def.’s Mot.”) (ECF No. 513). In 

its proposed amendment to its answer, the government seeks to include a liability-related 

defense based on the “relative benefits” doctrine set forth in United States v. 

Sponenbarger, 308 U.S. 256 (1939). Def.’s Mot., Attach. 4 (ECF No. 513-4). In 

Sponenbarger, 308 U.S. at 266-67, the Supreme Court held that “if governmental 

activities inflict slight damage upon land in one respect and actually confer great benefits 

when measured in the whole, to compensate the landowner further would be to grant him 

a special bounty.” If the amendment is allowed, the government will seek to show that 

the United States cannot be found liable for a taking in connection with the 

implementation of the MRRP because the government can show that any flooding impact 

from the MRRP is “slight” in comparison to all of the flood protection plaintiffs have 

received by virtue of the Corps’ operation of the Missouri River Mainstem System 

(“Mainstem System”) and the Missouri River Bank Stabilization and Navigation Project 

(“BSNP”). Def.’s Reply at 20 (ECF No. 526). 

The government argues that under its reading of Sponenbarger the court must

weigh the relative benefits the plaintiffs received from all of the Corps’ actions on the 

Missouri River separate from the court’s causation analysis, and in weighing the benefits 

the court must consider the construction and maintenance of the Mainstem System and 

the BSNP in deciding whether the flooding caused by the MRRP is “slight” in 

comparison to what plaintiffs would experience without the Mainstem System of 
4

Reservoirs and Dams and the BSNP to determine whether the government is liable for a 

taking. 

The plaintiffs oppose the government’s motion to amend its answer on a variety of 

grounds. The plaintiffs claim that the motion is untimely and prejudicial. Pl.’s Opp. at 9 

(ECF No. 517). They also argue that the motion is futile because the government’s 

proposed application of Sponenbarger to the facts of this case is not supported. Pl.’s Opp. 

at 13. The plaintiffs argue that the government’s reading of Sponenbarger is too broad

where, as here, the changes to the Mainstem System and the BSNP required together with 

other actions under the MRRP were not contemplated at the time the Mainstem System 

and the BSNP were constructed. 

Specifically, the plaintiffs argue that because the MRRP is aimed at returning the 

Missouri River to a more natural state to meet the Corps’ obligations under the ESA, the 

MRRP may not be considered together with the Corps’ flood control actions on the 

Missouri River to determine the government’s liability for a taking under the Fifth 

Amendment. Pl.’s Opp. at 25. In this connection, the plaintiffs concede that the benefits 

they have received from the construction and maintenance of the Mainstem System and 

the BSNP have been enormous. Indeed, much of the property at issue in this case is 

former Missouri River bottom land created by accretion from construction of the BSNP.

They argue, however, that in deciding whether the MRRP has resulted in the taking of 

flowage easements without compensation in contravention of the Fifth Amendment, the 
5

flooding impact from the MRRP must be evaluated separately from the flood protection

provided by the Corps’ Mainstem System and BSNP. 

The plaintiffs argue that Sponenbarger does not require a comparison of flooding 

on plaintiffs’ properties in a “but for” world without the Mainstem System and the BSNP

as the government proposes. Instead, the plaintiffs argue that the Mainstem System and 

the BSNP are the baseline against which the court should determine if the MRRP has 

resulted in a taking of a flowage easement on plaintiffs’ properties. Moreover, the 

plaintiffs argue that this court’s causation decision and its reconsideration decision by 

their terms necessarily require the Mainstem System and BSNP to serve as a baseline 

against which the MRRP flood impacts must be weighed. Plaintiffs contend that the court 

has already correctly determined that the proper comparison for deciding taking liability 

in this case is the world with the MRRP and the “but for” world without the MRRP only. 

The government responds that plaintiffs’ reading of Sponenbarger is too narrow

and that the court must consider the flooding of plaintiffs’ properties caused by the 

Corps’ actions implementing the MRRP in the context of the enormous flood reduction 

benefits the plaintiffs have received from the Corps’ construction and maintenance of the

Mainstem System and the BSNP. The government further argues that the court 

previously reserved this issue for the next trial phase and thus the defense is neither 

untimely nor prejudicial. 

For the reasons that follow, the government’s motion to amend its answer to 

include a defense based on its reading of Sponenbarger is DENIED. The court has 
6

determined that the flood protection provided by the Mainstem System and the BSNP is 

the baseline of flood protection against which the additional flooding caused by the 

MRRP should be judged for purposes of deciding both causation and government liability 

for any taking in this case. 

To the extent the government seeks to show in the Phase II trial that the Corps has

taken, post-2014, specific flood risk-reducing actions aimed at addressing the increase in 

flood risk associated with the Corps’ MRRP activities, the court will allow the 

government to introduce such evidence for the purposes of deciding the severity (if still 

relevant), duration, and type of taking (temporary or permanent) for the representative 

plaintiffs. 

I. PROCEDURAL HISTORY

Following a 55 day trial, evaluating the taking claims of 44 representative 

plaintiffs for various years from 2007-2014, the court issued a 103-page trial opinion on

February 23, 2018. In the court’s opinion, the court evaluated whether the System and 

River Changes the Corps began to implement in 2004 under the MRRP caused flooding 

or increased flooding on plaintiffs’ properties for the years 2007, 2008, 2010, 2011, 2013, 

and 2014.

3

 In evaluating causation, the court reviewed the extensive history of the 

 

3 These included changes to the Corps’ management of the dams which required the Corps to 

release water from the dams during periods of high water below the dams for the protection of 

threatened and endangered species (“System Changes”). Ideker Farms, 136 Fed. Cl. at 668-69. It 

also included various projects to dismantle dikes and revetments along the shoreline and to build 

chutes and to widen the River channel in order “to restore the River to a more natural state,” 

which had historically meandered miles inland (“River Changes”). Id. at 669. Specifically, as of 

2014 the Corps “had undertaken 1,697 dike notching actions, 354 major modification actions, 63 

dike lowering actions, 36 dike extension actions, 39 side-channel chute actions, 20 revetment 

chute actions, 14 backwater actions, and 3 channel widening actions.” Id. at 702. The Corps also 
7

Corps’ actions in reengineering the Missouri River by creating the nation’s largest 

reservoir and dam system and in straightening the River with dikes and revetments to 

ensure that downstream of the dams the River ran faster and deeper from when the River 

meandered across a large flood plain. The court also recognized that much of the property

at issue in the litigation was created because of the Mainstem System and the BSNP. The 

court then examined the Corps’ efforts to address the impact reengineering the River had 

on the natural environment, including threatened and endangered species and their 

habitat, and concluded based on the evidence presented that the MRRP, which was 

established to address these effects, gave rise to significant changes to the Corps’

management of the Missouri River; changes that had not been contemplated when the 

Mainstem System or the BSNP were created. See Ideker Farms, 136 Fed. Cl. at 668; Id.

at 686; Ideker Farms, 142 Fed. Cl. at 225.

The court found that in deciding whether the actions taken to implement the 

MRRP had caused flooding, the Mainstem System and the BSNP had to be viewed as the 

baseline. Thus, in analyzing causation, the court found that the proper comparison was 

the world with the MRRP and a “but for” world without the MRRP. See Ideker Farms, 

136 Fed. Cl. at 690.

 

constructed shallow water habitat and emergent sandbar habitat for threatened and endangered 

species. Id. at 694; see id. at 701 (explaining that shallow water habitat is made by “notching 

dikes and revetments, allowing the same to deteriorate, dredging chutes, and creating backwaters 

and chevrons”). 
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Based on evidence presented by the parties, the court concluded that the changes 

taken by the Corps under the MRRP had caused water surface elevations to rise which in 

turn increased flooding on certain of plaintiffs’ properties for the years 2007, 2008, 2010, 

2013, and 2014. Id. at 690. Specifically, the court found that the changes called for under 

the MRRP have led “to more flooding or more severe or longer flooding than would have 

occurred had these Changes not been made by the Corps.” Id. at 696-97. In this 

connection, the court found that “[s]eepage and blocked drainage claims . . . are all tied to 

higher [water surface elevations].” Id. at 720. The court concluded that, for certain 

properties, the flooding that occurred in 2007, 2008, 2010, 2013, and 2014, was both 

caused by the Corps’ MRRP and was the foreseeable result of implementation of the 

System and River Changes under the MRRP. Id. The court further found that the 

evidence presented by the government to show that the MRRP had no impact or a 

positive impact on flood control was not supported and thus was unpersuasive. Id. at 709, 

711.

Based on the court’s evaluation of the evidence, the court found that 28 plaintiffs

had established causation and could proceed to Phase II of the trial. The remaining 

representative plaintiffs would be dismissed from the case. Specifically, the court found 

that 14 plaintiffs had demonstrated that flooding on their property was the foreseeable

result of the Corps’ MRRP activities but the court left open the question of whether that 

the flooding was sufficiently severe to establish a taking. Id. at 762. The court found an 

additional 14 plaintiffs had established that the Corps’ MRRP activities were the 
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foreseeable cause of the flooding on their properties and of sufficient severity to give rise 

to a taking assuming all of the remaining factors for liability set by the Supreme Court in 

Arkansas Game & Fish Commission v. United States, i.e. duration and the owner’s 

reasonable investment-backed expectations, were met. Id. at 762; see Ark. Game & Fish

Comm’n v. United States, 568 U.S. 23, 38-39 (2012). 

Both parties moved for reconsideration of the court’s Phase I decision. While their 

motions were pending, the Federal Circuit issued its decision in St. Bernard Parish

Government v. United States, 887 F.3d 1354 (Fed. Cir. 2018), finding that the 

government was not liable for certain flooding claims associated with Hurricane Katrina 

in New Orleans. In this case, the court concluded on reconsideration that the holdings in 

St. Bernard Parish were consistent with the court’s Phase I decision and that 

reconsideration was not warranted for any of the other reasons presented to the court. See

Ideker Farms, 142 Fed. Cl. at 228.

In reaching this conclusion, the court specifically rejected the government’s 

contention that the court erred in failing to consider all of the Corps’ flood risk-reducing 

actions together with the MRRP in deciding causation. The court determined that where

the changes to the Corps’ management of the River required by the MRRP had not been 

contemplated at the time the Corps had designed and constructed the reservoirs and dams 

that make up the Mainstem System or the BSNP, that those flood risk-reducing actions

serve as a proper baseline in deciding whether later Corps’ actions have caused increased 

flooding. The court found that this case fit squarely within the exception identified in
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footnote 14 of St. Bernard Parish opinion where the Federal Circuit clarified that it was 

not addressing the situation where “the risk-reducing government action preceded the 

risk-increasing action.” 887 F.3d at 1367 n.14 (citing John B. Hardwicke Co. v. United 

States, 467 F.2d 488, 490-91 (Ct. Cl. 1972)). Under this exception, known as the 

Hardwicke exception, a risk-reducing action that precedes a risk-increasing action would 

only be considered if the risk-increasing action – here, the MRRP – was contemplated at 

the time of the risk-reducing action – here the Mainstem System and the BSNP. See id.;

see also Ideker Farms, 142 Fed. Cl. at 228-232.

Following several status conferences regarding the scope of the Phase II trial, the 

government on November 5, 2019, filed its formal motion to amend its answer to include 

an affirmative defense based on Sponenbarger. The motion was fully briefed on 

December 9, 2019. The court held oral argument on December 10, 2019.

II. LEGAL STANDARD

RCFC 15(a)(2) states that “a party may amend its pleading only with the opposing 

party’s written consent or with the court’s leave” and that “[t]he court should freely give 

leave when justice so requires.” In general, the court should only deny leave to amend 

where there is evidence of “delay, bad faith, repeated failure to correct . . ., undue 

prejudice to the opposing party, or if the amendment would be futile.” Marchena v. 

United States, 128 Fed. Cl. 326, 330 (2016), aff’d, 702 F. App’x 988 (Fed. Cir. 2017) 

(citing A&D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1158 (Fed. Cir. 2014)); see 

Foman v. Davis, 371 U.S. 178, 182 (1962) (giving discretion to the trial court to deny a 

motion to amend for reasons “such as undue delay, bad faith . . . futility of amendment, 
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etc.”). Where the defendant seeks to amend an answer to raise an additional affirmative 

defense, that defense “may nevertheless be raised where the plaintiff was aware of the 

argument and indicated his responses to the evidence.” E.L. Hamm & Assocs., Inc. v. 

England, 26 F. App’x 936, 937 (Fed. Cir. 2002). “The decision to grant or deny a motion 

for leave to amend . . . lies within the sound discretion of the trial court.” Tamerlane, Ltd. 

v. United States, 550 F.3d 1135, 1147 (Fed. Cir. 2008) (quoting Insituform Techs., Inc. v. 

CAT Contracting, Inc., 385 F.3d 1360, 1372 (Fed. Cir. 2004)).

III. DISCUSSION

Given the court’s prior order stating that issues associated with Sponenbarger 

would be considered in the Phase II trial,

4

the court agrees with the government that its

motion to amend its answer is not untimely nor would allowing the amendment be 

prejudicial. “Undue prejudice may be found when an amended pleading would cause 

unfair surprise to the opposing party, unreasonably broaden the issues, or require 

additional discovery.” Cooke v. United States, 79 Fed. Cl. 741, 743-44 (2007). The 

 

4 After the initial filing of the complaint in 2014, the parties submitted a Joint Preliminary Status 

Report which listed the relevant benefits doctrine as one of the relevant legal questions for this 

case. J. Prelim. Status R. at 5 ¶ 10 (ECF No. 13) (“Whether the government’s operation of the 

Missouri River Mainstem system, taken as a whole, confers net benefits upon Plaintiffs’ specific 

parcels of property.”). Following the pre-trial conference, the court, relying on language in 

Horne v. Dep’t of Agric., 135 S. Ct. 2419, 2434-35 (2015) (Breyer, J. concurring), issued an 

order stating “[t]he court will determine the relevance of United States v. Sponenbarger, 308 

U.S. 256, 266-67 (1939), if any, if the court is required to determine just compensation after 

finding that a taking has occurred.” Oct. 4, 2016 Order at 1 (ECF No. 146). The government then 

moved to allow presentation of evidence regarding relative benefits as an element of liability. 

Def.’s Mot. to Modify Pre-Trial Order § II.B (ECF No. 154). The court then held a hearing and 

determined that “if, in fact, the Plaintiff is able to establish causation and foreseeability, we will 

have a second phase of the trial that will deal with the Sponenbarger issue and reasonable 

investment-backed expectations. . . .” Tr. of Nov. 2, 2016 Hr’g at 6:23-7:2.
12

plaintiffs have had substantial notice that the government will assert a defense based on 

relative benefits. Indeed, in the reconsideration decision, the court explicitly stated that it 

had reserved the application of Sponenbarger to the facts for Phase II. Ideker Farms, 142 

Fed. Cl. at 232-33. Thus, whether the motion to amend should be granted turns on 

whether the government’s Sponenbarger defense as presented would be futile.

“An amendment is futile when the proponent of the amendment cannot provide a 

colorable argument that the original or the amended claim will not survive a motion to 

dismiss.” Northrop Grumman Sys. Corp. v. United States, 137 Fed. Cl. 677, 682 (2018) 

(citing Cultor Corp. v. A.E. Staley Mfg. Co., 224 F.3d 1328, 1333 (Fed. Cir. 2000)). To 

survive the motion to dismiss standard, the government must have alleged sufficient facts 

such that the defense is not “destined to fail.” Hanover Ins. Co. v. United States, 134 Fed. 

Cl. 51, 63 (2017). 

As discussed above, the government argues that under Sponenbarger and the

relative benefits doctrine it established, the court’s determination of whether there has 

been a taking “should consider all benefits from the relevant government actions that 

affect the Plaintiffs’ properties.” Def.’s Reply at 9. The government argues that these 

include “those arising from the construction, operation, and repair of the dams, BSNP 

river-training structures such as dikes and revetments, and hundreds of miles of levees.”

Id. at 10. Indeed, the government contends that this case is easily resolved under the 

relative benefits doctrine alone because the intermittent but repeated flooding on a 

portion of plaintiffs’ property due to the MRRP is without question “slight” in 
13

comparison to the enormous benefits the plaintiffs received from the Corps’ construction 

and maintenance of the Mainstem System and the BSNP structures which created

plaintiffs’ river-bottom property and for years protected their properties from flooding. 

See Tr. of Dec. 10, 2019 Oral Arg. 14:5-10. 

The government acknowledges that the court’s Phase I decision “limited the 

causation analysis” to a “but for analysis” comparing flooding on plaintiffs’ properties 

before and after implementation of the MRRP for each of the years in question. Def.’s 

Reply at 13. The government argues, however, that the relative benefits analysis required 

by Sponenbarger is distinct from the causation analysis and that under Sponenbarger the 

court, in deciding whether the government is liable for a taking based on flooding 

associated with a government project, must take into account “all benefits of the relevant 

government actions without limitation.” Id; see also Tr. of Dec. 10, 2019 Oral Arg. 

47:15-17. Relying on this reading of Sponenbarger, the government argues that the court 

must compare the flooding the plaintiffs experienced with the MRRP with the flooding 

they would experience without the Mainstem System and the BSNP to find liability for a 

taking. 

The plaintiffs argue that, having concluded that the “but for” world for purposes of 

deciding causation included the Mainstem System together with the BSNP as the 

baseline, the court should not apply a different analysis for purposes of determining the 

government’s taking liability for that same flooding. According to the plaintiffs, the law 

of the case following the reconsideration decision is that the Mainstem System and the 
14

BSNP fit within the Hardwicke exception identified by the Federal Circuit in St. Bernard 

Parish footnote 14 and, in keeping with that exception, the government can be held liable 

for a taking with the existing flood protections serving as the baseline if the flood riskincreasing activities were not contemplated at the time the flood protections were put in 

place. Pl.’s Sur-Reply at 4 (ECF No. 527) (citing Banks v. United States, 741 F.3d 1268, 

1276 (Fed. Cir. 2014)). The plaintiffs also take issue with the government’s reading of 

Sponenbarger and argue that the Supreme Court in Sponenbarger accepted the flood 

protection levees the government had previously helped to construct as a baseline and 

only considered the government’s actions in connection with the precise project at issue 

in deciding relative benefits. Pl.’s Opp. at 16.

A. The Law Of The Case Compares A World With And Without The 

MRRP Only

To begin, it is not disputed that the court has already determined that the “but for”

world for deciding whether the government caused the flooding on plaintiffs’ properties 

is a “but for” world without the MRRP but with the rest of the Mainstem System and the 

BSNP in place. Under the law of the case doctrine, “when a court decides upon a rule of 

law, that decision should continue to govern the same issues in subsequent stages in the 

same case.” Banks, 741 F.3d at 1276 (quoting Christianson v. Colt Indus. Operating 

Corp., 486 U.S. 800, 815-16 (1988)). The law of the case doctrine “bars retrial of issues 

that were previously resolved.” Intergraph Corp. v. Intel Corp., 253 F.3d 695, 697 (Fed. 

Cir. 2001). “Although a court may depart from the law of the case doctrine in 

‘exceptional cases,’ such departures are rare” and generally require discovery of new and 
15

material evidence or an intervening change in controlling legal authority. Toro Co. v. 

White Consol. Indus., Inc., 383 F.3d 1326, 1336 (Fed. Cir. 2004) (citations omitted). 

The court finds that under the law of the case doctrine, the court’s conclusion that 

the baseline for determining causation must also apply to deciding the government’s 

ultimate liability for a taking. The government’s suggestion that in deciding whether the

government is liable for a taking the court should compare the flooding on plaintiffs’

properties caused by the MRRP with the flooding that would have occurred on plaintiffs’

properties without the Mainstem System and the BSNP is inconsistent with the court’s 

reconsideration decision. 

The court rejected on reconsideration the government’s contention that under the 

Federal Circuit’s opinion in St. Bernard Parish the “but for” world for deciding causation

for a taking by government flooding mandates consideration of all of the benefits 

plaintiffs received from the Mainstem System and the BSNP. While the court on 

reconsideration acknowledged that the MRRP is related to the Mainstem System and the 

BSNP, the court did not find that they must therefore be considered together for purposes 

of deciding whether the government’s actions give rise to a taking. To the contrary, as the 

court discussed in the reconsideration opinion, St. Bernard Parish leaves open the exact

circumstances of this case where the flooding at issue is caused by government actions 

that were plainly not contemplated at the time the original river flood control 
16

management systems were designed and constructed. Ideker, 142 Fed. Cl. at 232.

5

In 

such circumstances, the flood protections previously provided by the government are the 

baseline for deciding taking liability. 

B. Sponenbarger And Subsequent Cases From The Federal Circuit Are 

Consistent With The Court’s Reconsideration Decision

The court also finds that even if the relative benefits issue had not been resolved in 

the court’s reconsideration opinion, the government’s reading of Sponenbarger is too 

broad. As plaintiffs persuasively point out, in Sponenbarger the Court in deciding the 

government’s taking liability “did not compare the injuries allegedly inflicted by the 10-

year program in question to the flood-control benefits . . . that had been conferred by 

other federal programs that preceded it.” Pl.’s Opp. at 16. In Sponenbarger, an individual 

sued the United States for a taking of her land caused by the Mississippi Flood Control 

Act of 1928 and actions pursuant to the Act. 308 U.S. at 260. In deciding whether the 

government was liable for a taking, the Court did not consider the flood control benefits 

that had been conferred on the plaintiff’s land under prior flood control programs paid for 

 

5

In St. Bernard Parish, the plaintiffs alleged the government’s operation of the Mississippi 

River-Gulf Outlet (“MRGO”) channel during the aftermath of Hurricane Katrina resulted in 

flooding that would not have occurred had the channel not been constructed. 887 F.3d at 1357. 

At the time when construction of the MRGO was concluding, the Lake Pontchartrain and 

Vicinity Hurricane Protection (“LPV project”) began construction. Id. at 1358. The Circuit stated 

that to show causation, the plaintiffs had to show that their property would be worse in a “but 

for” world without both the MRGO and LPV than in the present world with both. Id. at 1365. 

The Circuit explained that both must be considered because both were “directed to the same risk 

that is alleged to have caused the injury to the plaintiffs.” Id. In St. Bernard Parish, the Circuit 

stated that “there is no question that the LPV project was directed to decreasing the very flood 

risk that the plaintiffs allege was increased by the MRGO project” and included “levees along 

the banks of MRGO.” Id. Indeed, some “construction of the levees used some of the material 

dredged from MRGO.” Id. The facts of this case are very different. 
17

by the United States. Specifically, the Court acknowledged that the United States had 

helped build protective levees along the banks of the Mississippi River. Id. at 261. 

However, in deciding whether the government was liable for a taking based on the 

Mississippi Flood Control Act of 1928, the court looked only at the benefits conferred by 

that 1928 Act and not any additional flood control benefits conferred on the plaintiff’s 

land from the government’s earlier support of an extensive levee system. The Supreme

Court found that “[t]he Government ha[d] not subjected respondent’s land to any 

additional flooding, above what would occur if the Government had not acted [in 1928].”

Id. at 266.

Thus, Sponenbarger does not mandate that this court look to every flood control 

benefit the government has conferred on a plaintiff in deciding whether there has been a 

taking. The Supreme Court acknowledged that there was an existing baseline of 

protection and looked only at whether the flooding caused by the 1928 Act was 

outweighed by the benefits conferred on plaintiff by that same Act. Here, by analogy, the

court’s inquiry was properly focused on whether the flooding caused by the MRRP is 

outweighed by any flood protection benefits conferred on plaintiffs by the MRRP only. 

The “but for” world the court used for purposes of determining whether there can 

be a taking in this case is also consistent with the “but for” world referenced in the 

Federal Circuit’s decision in St. Bernard Parish. In St. Bernard Parish, the Circuit 

considered the MRGO and LPV together because both were “directed to the same risk 

that is alleged to have caused the injury to the plaintiffs.” 887 F.3d at 1365. There was 
18

“no question that the LPV project was directed to decreasing the very flood risk that the 

plaintiffs allege was increased by the MRGO project” and included “levees along the 

banks of MRGO.” Id. Indeed, some “construction of the levees used some of the material 

dredged from MRGO.” Id. The Circuit specifically indicated that it was not addressing a 

situation where, like here, “the risk-reducing government action preceded the riskincreasing government action.” Id. at 1367 n.14. It is precisely for this situation the 

Circuit referenced Hardwicke and the significance the Hardwicke court placed on 

considering what was contemplated for determining the appropriate “but for” world 

under Sponenbarger. Id. (citing Hardwicke, 467 F.2d at 490-91). As stated in the court’s 

reconsideration decision, the circumstances of this case fit squarely within the situation 

described above by the Federal Circuit in St. Bernard Parish which referenced 

Hardwicke. 

In Hardwicke, the court considered whether the Falcon Dam, which decreased the 

risk of flooding, constituted a baseline to analyze the effects of the later completed 

Anzalduas Dam, a diversion dam which increased the risk of flooding. The court stated 

that “a buyer of land . . . knew or should have known that the flood control plan . . . 

contemplated the construction of both storage and diversion dams.” 467 F.2d at 490. 

Thus, the court held that “the circumstances show sufficient nexus between Falcon and 

Anzalduas, sufficient probability that Anzalduas would come into being after Falcon, so 

that plaintiffs cannot base a taking claim on the hypothesis that they can garner the 

benefit conferred by Falcon, without deduction for the probable detriment when 
19

Anzalduas comes into being too.” Id. at 491. Here, the court’s “but for” world for 

purposes of deciding if there has been a taking is consistent with Hardwicke because it 

has determined that the changes made to the Mainstem System and the BSNP by the 

MRRP were not contemplated at the time the Mainstem System and the BSNP were 

constructed. 

The government’s reliance on Bartz v. United States, 633 F.2d 571 (Ct. Cl. 1980),

Ark-Mo Farms, Inc. v. United States, 530 F.2d 1384 (Ct. Cl. 1976), and Laughlin v. 

United States, 22 Cl. Ct. 85 (1990) to suggest that Sponenbarger should be read more 

broadly to require the court to ignore the Mainstem System and the BSNP as a baseline is

not supported. To begin, the discussions of Sponenbarger in each of these cases was 

dicta; in each case the court found that the government had not caused the alleged 

flooding.6 Moreover, the facts in the above-cited cases are plainly distinguishable from 

the facts in the present case.

In Bartz, the plaintiffs alleged a taking based on the construction and operation of 

the Coralville Dam. 633 F.2d at 572-73. The court found that the Coralville Dam was “a 

component of the comprehensive flood control plan for the Mississippi Water Basin.” Id.

at 573. Specifically, the plaintiffs argued that the Corps had changed the operating 

protocols of the Dam and that change caused a taking. Id. The court rejected the 

 

6 Ark-Mo Farms, Inc., 530 F.2d at 1386 (holding “[n]o proof was made that Dam No. 2 or any 

other consequence of the project was the cause of the floods complained of”); Bartz, 633 F.2d at

577 (holding “[e]xcessive precipitation was the root cause of the flooding experienced by 

plaintiffs”); Laughlin, 22 Cl. Ct. at 114 (“Since plaintiff did not prove causation, no detriment to 

his property resulted from any act of the Government.”).
20

plaintiffs’ argument that the operating protocols had changed to benefit other landowners, 

id. at 573-74, and considered the relative benefits with and without the Dam, id. at 575

(“Each of the years . . . was analyzed for the potential of raising a crop, using two 

hypotheses: one, regulated flows with Coralville Dam in position, and two, unregulated 

flows without Coralville Dam.”). In Bartz, the court only looked at the Dam and not the 

entire flood control plan for the Mississippi basin. As such, Bartz is consistent with the

court’s reading of Sponenbarger. 

In Ark-Mo Farms, Inc., the plaintiff alleged that the closing “Dam No. 2” caused a 

taking. 530 F.2d at 1385. Dam No. 2 was part of the “McClellan-Kerr Arkansas River 

Navigation System” with the primary purpose of “the creation of a navigation channel” 

but included “a number of flood control structures, all upstream from plaintiff’s farm.” 

Id. In conducting the relative benefits analysis the court considered the impact of the 

System as a whole. Id. at 1386. Unlike Dam No. 2 and the System in Ark-Mo Farms, Inc., 

the court has determined in this case that, while related, the MRRP was created to address 

the Corps’ ESA compliance and it does not have the same purposes as the Mainstem 

System or BSNP. It is for this reason that the court turned to the Hardwicke exception.

Finally, in Laughlin, the plaintiff claimed that both the “Bureau’s operation of the 

Colorado River as a flood control project” and “the existence and/or operation of the 

Topack Marsh” resulted in a taking of the plaintiff’s property by causing high water 

elevation. 22 Cl. Ct. at 101. The Topack Marsh itself was created “as an unanticipated 

consequence of the river control project.” Id. at 89. Thus, in the relative benefits analysis, 
21

the court considered benefits arising from structures on the River that were part of the 

flood control project (i.e. dams, reservoirs, levees) and the Marsh that plaintiff alleged 

caused high groundwater and high-water elevation. Id. at 112. The government argues 

that this case is relevant because the court relied on a “but for” world without both the 

Marsh and prior flood control projects. Tr. of Dec. 10, 2019 Oral Arg. 18:12-20.

However, this case is, once again, distinguishable from the present case because in 

Laughlin the plaintiff alleged a taking by both the Marsh and the river control project. 

See Laughlin, 22 Cl. Ct. at 86 (“plaintiff ascribes causation to the system of dams and 

reservoirs on the Colorado River and to Topack Marsh, either independently of or in 

conjunction with each other.”). Thus, the Laughlin court’s construction of a “but for”

world necessarily had to consider what would happen without the Marsh and structures

that were part of the river control project. Here, in contrast, plaintiffs allege a taking 

based only on the MRRP.

By disregarding the fact that the MRRP and its ESA-related purposes were not 

contemplated when the Mainstem System and the BSNP were constructed, the 

government’s proposed relative benefits test would mean that the government could take 

virtually all of plaintiffs’ properties for the benefit of threatened and endangered species 

and their habitats without compensation because the plaintiffs’ properties would be 

repeatedly flooded and may not even exist in the government’s proposed “but for” world 
22

without the Mainstem System and the BSNP. The plaintiffs, of course, purchased and 

developed their properties because the Mainstem System and the BSNP were in place.7

In this regard, the court finds the government’s concern that this court’s reading of 

Sponenbarger will result in government liability for any adjustment of flood-control 

benefits in a flood-control project unsupported. See Tr. of Dec. 10, 2019 Oral Arg. 52:21-

53:9. The projects undertaken by the Corps to reengineer the River for the benefit of 

these plaintiffs, among others, has caused environmental impacts that were not 

contemplated when the Mainstem System and the BSNP were constructed. The MRRP 

requires the Corps to once again reengineer the River, this time for the benefit of 

threatened and endangered species. These changes have caused an increase in flood risk 

to plaintiffs’ properties that was not contemplated when the Corps took its prior flood 

risk-reducing actions. This case does not involve a comparison between different flood 

risk-reducing actions by the Corps. While relative benefits derived from related projects 

for the same purpose must be considered together, here the purpose of the Corps’ actions 

are different and were not contemplated at the time the Mainstem System and the BSNP

were constructed. Thus, neither Sponenbarger nor any other Federal Circuit case

mandates that the MRRP be combined with all the Corps’ actions on the River for 

purposes of determining whether there has been a taking by flooding. 

 

7 The government’s position is particularly at odds with the fact that the Corps has been allocated 

funds and authority to purchase land from willing sellers “to be converted to habitat for native 

Missouri River species.” Ideker, 136 Fed. Cl. at 665. 
23

Therefore, the government’s motion to amend its answer to seek a defense to 

taking liability based on a relative benefits test that compares plaintiffs’ flood risks with 

and without the Mainstem System and the BSNP is DENIED. As a matter of law this 

defense would be futile. However, as discussed above, to the extent the government has 

new evidence to show that the Corps has implemented measures to reduce flood risks that 

occurred after 2014 to address MRRP flooding risk, they may be presented in Phase II.

As set forth in the court’s December 10, 2020 Order (ECF No. 531), the next step in this 

litigation is the parties’ submission of a joint status report, to be filed on February 27, 

2020, after the close of fact discovery on February 24, 2020. 

IT IS SO ORDERED.

s/Nancy B. Firestone 

NANCY B. FIRESTONE

Senior Judge