# United States Court of Appeals **for the Federal Circuit**

______________________ IDEKER FARMS, INC., ROBERT ADKINS, JR.,ROBERT ADKINS, SR., ESTATE OF BETTY ADKINS, ESTATE OF ROBERT ADKINS, SR., KEN ADKINS, DBA ROBERT ADKINS & SONSPARTNERSHIP, GERALD SCHNEIDER, DBA BUFFALO HOLLOW FARMS, INC., Plaintiffs

- Cross

- Appellants

LYNN BINDER, ELAINE BINDER, TODD BINDER, APRIL BINDER, TYLER BINDER, VALERIE BINDER, RICHARD BINDER, DUSTIN BINDER,DARWIN BINDER, DBA MIDWEST GRAIN CO., EDDIE DREW ES, ROBERT W. DREWES REVOCABLE

TRUST, RITA K. DREWES REVOCABLE TRUST, DAVID DREWES, INDIVIDUALLY AND, DBA DREWES FARMS, INC., PATRICK NEWLON, DBA NEWLON FARMS, INC., DAVID NEWLON, DBA D DOUBLE N FARMS, INC., JASON TAYLOR, BRAD TAYLOR, DBA H.B.J. FARMS, INC ., LYLE HODDE,

DBA HODDE & SONS LIMITED PARTNERSHIP, STEVE CUNNINGHAM, TRUSTEE OF THE DORIS J. CUNNINGHAM AND STEVEN K. CUNNINGHAM DECLARATION OF TRUST, GAIL CUNNINGHAM, DBA CUNNINGHAM FARMS, INC., CHARLES GARST, INDIVIDUALLY AND, DBA GARST FARMS,

INC., CO NNIE GARST, DBA GARST FARMS, INC.,

RON SCHNEIDER, MARY SCHNEIDER, ET AL., Plaintiffs

v. Case: 21-1849 Document: 95 Page: 1 Filed: 06/16/2023IDEKER FARMS , INC

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UNITED STATES, Defendant

- Appellant

______________________

2021

- 1849, 2021

- 1875

______________________ Appeals from the United States Court of Federal Claims in No. 1:14

- cv

- 00183

- AOB , Judge Armando O. Bonilla

.

______________________
Decided: June 16 , 2023

______________________

D ONALD B. V ERRILLI , J R ., Munger, Tolles & Olson LLP, Washington, DC, argued for plaintiffs

- cross

- appellants. Also represented by E LAINE G OLDENBERG , D AHLIA M IGNOUNA ; B ENJAMIN J OSEPH H ORWICH , San Francisco, CA; S ETH C. W RIGHT , Polsinelli, PC, Kansas Cit y, MO

.

B RIAN C. T OTH , Environment and Natural Resources Division, United States De partment of Justice, Washington, DC, argued for defendant

- appellant. Also represented by T ODD K IM

.

D AVID C HUNG , Crowell & Moring LLP, for amicus curiae American Farm Bureau Federation. Also represented by E LIZABETH D AWSON

.

T REVOR C ALDWELL B URRUS , Cato Institute, for amici curiae Cato Institute, Mountain States Legal Foundation. Also represented by J OSEPH B INGHAM , Mountain States Legal F oundation, Lakewood, CO ; I LYA S HAPIRO , Manhattan Institute, New York, NY.

J EREMY C HARLES M ARWELL , Vinson & Elkins LLP, Washington, DC, for amicus curiae Chamber of Commerce Case: 21-1849 Document: 95 Page: 2 Filed: 06/16/2023IDEKER FARMS , INC

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of the United States of America.

J AY R. C ARSON , Wegman Hessler, Cleveland, OH, for amicus curiae Buckeye Institute.

______________________
Before M OORE , Chief Judge

, P ROST and T ARANTO , Circuit Judges

. M OORE , Chief Judge

. Plaintiffs br ought this action against the United States under the Fifth Amendment seeking compensation for the Army Corps of Engineers’ (Corps) alleged taking of their farmland s and personal property by permanent, recurring flooding. The Court of Federal Claims determined ther e was a taking and entered judgment award ing compensation for the diminished value of the land but reject ed damages claims for lost crops. The G overnment appeals the trial court’s determination that a taking occurred . P laintiffs cross

- appeal the denial o f compensation for lost crops

. For the reasons discussed below, we affirm in part, vacate in part, and remand for proceedings consistent with this opinion.

B ACKGROUND
A

. The Missouri River

The Missouri River (River) spans over 2,300 miles. It begins in southwestern Montana and winds through North Dakota, South Dakota, Iowa, Nebraska, Kansas, and Missouri before emptying into the Mississippi River. The River’s basin encompasses approximately one sixth of the land mas s of the continental United States. Until the middle of the twentieth century, the River was multi

- channeled and predominantly “wide and shallow ,” ranging from 1,000 feet to almost six miles wide

. J.A. 51,703

. In its natural state, t he River experienced annual flooding that constantly morphed its path and the Case: 21-1849 Document: 95 Page: 3 Filed: 06/16/2023IDEKER FARMS , INC

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topography of its floodplain . The an nual flooding pattern consisted of April flooding caused by snowmelt on the plains and local rain fall and June flooding caused by melting snowpack in the Rocky M ountains and rainfall at lower elevations . J.A. 50,742. During these floods, the River would extend across large portions of the floodplain up to seventeen miles, connecting the primary channel to secondary channels. J.A. 50,741

– 42; J.A. 50,899

. The flooding caused erosion and deposited sediment as the flood waters receded. J.A. 50,742. In a flood’s wake was an altered floodplai n, riverbank, and laterally relocated river channels. J.A. 50,742; J.A. 50,900. In this way, the flooding cycles kept the River in a state of “dynamic equilibrium with its floodplain” in which the River “migrat ed back and forth” across its floodplain. J .A. 50,742; J.A. 50,886

. In

sum , the River “was uncontrolled ” and, as a result, rendered large portions of the floodplain unproductive for development, including agricultural use. J.A. 50,885; J.A. 51,052 ; J.A. 52,926

. In the 1940s, Congress passed se veral bills to improve navigation and reduce flooding

. The Flood Control Act (FCA) of 1944 authorized the construction of a series of dams to create a reservoir storage system designed to contain excess water and reduce flooding

. Pub. L. No. 7 8- 534, 58 Stat. 887 ( codified at 33 U.S.C § 701 et seq .); see S outh Dakota v. Ubbelohde , 330 F.3d 1014, 1019 (8th Cir. 2003) (summarizing history of FCA); see also ETSI Pipeline Project v. Missouri

, 484 U.S. 495, 499

– 505 , 512

– 14 (1988) ( same ). The dam s , which make up the Missouri River Mainstem Reservoir System (Mainstem System), were completed in 1967. The FCA require d the Corps to operate the Mainstem System to promote a series of objectives

, primarily navigation and flood control, and secondarily fish and wildlife conservation, among other things

. See 58 Stat. 88 7– 91 ; 33 U.S.C. § 701

– 1 (Declaration of Policy of FCA) ; see ETSI , 484 U.S. at 512; Ubbelo h de , 330 F.3d at 10 19

– 20

. I n 1945, Congress established the B ank Stabilization and Case: 21-1849 Document: 95 Page: 4 Filed: 06/16/2023IDEKER FARMS , INC

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Navigation Project (BSNP). Under the BSNP, t he Corp s altered the River’s water flow (including location, volume, and rate) by c onstruct ing a “self

- scouring” navigation channel and buil ding d ikes , levees, and revetments. J.A. 51,707. These modifications eliminated secondary channels, narrowed the River’s channel to as little as one third its natural width, reduced flooding

, and stabilized the river banks

. As a result, t he River was no longer dynamic with respect to the floodplain. J.A. 51,707

– 08; J.A. 51,724. The Corp s completed the BSNP in 198 0

. Consistent with the FCA , t he Corp s manages the Mainstem System while accounting for the effects of BSNP structures according to opera tions outlined in its 1979 M aster Manual, which it used from 1979 until 2004. The 1979 Master Manual prioritized flood control first and recreation and wildlife last

. See Ubbelohde , 330 F.3d at 102 8

. The Mainstem System and BSNP accomplished theirintended effect: what was previously economically unproductive floodplain became stable for development. J.A. 53,478 (G overnment 30(b)(6) witness stating goal was to encourage development)

. Farmers and developers invested in and improv ed the land free from annual flooding. J.A. 52,86 2 ( Government report)

. B y March 2005, 95 percent of the River f loodplain was developed for agricultural, urban, and industrial use s . J.A. 52,862.

T he Mainstem System and BSNP , however, also had signifi cant environmental side effects

. See Ideker Farms, Inc. v. United States , 136 Fed. Cl. 654, 664

– 66 (2018) ( Phase I )

. In particular, t he self

- scouring navigation channel altered downstream sediment deposits , while riverbank stabilization and floodplain reduction eliminated fish and bird habitats and interrupted wildlife breeding cycles

. Id. at 664

– 65. Realizing the environmental impact of the Mainstem System and BSNP

, in 1986, Congress authorized the Corp s to purc hase land adjacent to the River to recreate lost habitat s. Id. at 665. Case: 21-1849 Document: 95 Page: 5 Filed: 06/16/2023IDEKER FARMS , INC

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The Corps’ land reclamation was not its only mitigating action

. The Fish and Wildlife Service (FWS) placed s everal bird species and one fish species a ffected by the Mainstem System and BSNP on the endangered species list pursuant to the Endangered Species Act (ESA). Id. at 666 (citing 16 U.S.C. § 1531 et seq

. ). The ESA requires any agency, including the Corp s, to consult with F WS and conduct a biological assessment regarding the impact of its activities on the survival or recovery of an endangered species. 16 U.S.C. § 1536 (a)

, (c)

. In response to the agency’s assessment

, FWS provides a biological opinion (BiOp) of the agenc y’s i mpact on the endangered or threatened species and provides “reasonable and prudent alternatives” for the agency to take if it determines the agency’s intended action would violate the ESA . 16 U.S.C. § 1536(b)(3)(A). Unless the agency gets an exemption or is allowed to “take” a limited number of endangered species

, the agency must follow the BiOp or provide a reasonable alternative to satisfy its obligations under the ESA. 16 U.S.C. §§ 1536( a)(2) , 1539 ; Phase I , 136 Fed. Cl. at 666

. In the 1990s, the Corp s and FWS began discussions concerning proposed changes to the River designed to mitigate the environmental impact of the Mainstem System and BSNP . J.A. 52,103

– 27

. As part of those discussions, FWS issued several BiOps , some of which called for restoring the natural spring and summer river cycles and wildlife habitats

. Phase I , 136 Fed. Cl. at 666; see In re Operation of M o. River Sys. Litig. , 421 F.3d 618, 62 6 (8th Cir. 2005)

. The Corp s did not make those changes because it determined FWS’ proposed actions would exacerbate flood risks
to land adjacent to the River , contrary to the Mainstem System and BSNP’s primary objective

. Phase I , 136 Fed. Cl. at 666

– 67; see Mo

. River Sys. Litig. , 421 F.3d at 626

. In 2002, the Corp s faced several lawsuits

— which were consolidated for multi

- district litigation

— from private parties and s tates objecting to the Corps’ River management for Case: 21-1849 Document: 95 Page: 6 Filed: 06/16/2023IDEKER FARMS , INC

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differing reasons , including its failure to implement the changes in the 2000 BiO p

. See In re Operat ion of the Mo. River Sys. Litig. , 363 F. Supp. 2d 1145 , 1156

– 62 (D. Minn. 2004)

, aff’d in part , 421 F.3d 618

. As a result of those lawsuits, the district court ordered the Corp s to revise its 1979 Master Manual, which resulted in the 2004 Master Manual

. In re Operation of M o. River Sys. Litig. , 305 F. Supp. 2d 1096, 109 9 (D. Minn. 2004)

. The 2004 Master Manual brought many changes to the Mainstem System and BSNP ( 2004 Changes)

. The BSNP changes (River Changes) were intended to “restor[e] the Missouri River to a more natural state .” Phase I , 136 Fed. Cl. at 669. The Corp s referred to this as the Missouri River Recovery Program (MRRP). Id. The MRRP created moreshallow water habitats through modifications to the channel and di kes and reopened chutes that the Corps previously closed. Id. The Corps also made changes to the Mainstem System management (System Changes)

. Unlike the 1979 Master Manual that prioritized flood control over wildlife , t he 2004 Master Manual eliminate d prioritization

. J.A. 50,117.

B. Procedural Background

This case arises out of the impacts of the 2004 Changes. Plaintiffs are approximately 372 individuals and entities who own and operate farms a djacent to the River in six
states

. While t he period from 2000

– 2006 was largely a drought

, periodic flooding returned in 2007, 2008, 2010, 2011, 2013, and 2014. Phase I , 136 Fed. Cl. at 670. Plaintiffs filed suit in 2014 in the Court of Federal Claims, alleging the 2004 C hanges caused frequent an d severe flood ing on Plaintiffs’ farms between 2007 and 2014 that a mounted
to permanent, physical takings under the Fifth Amendment.

The trial court split Plaintiffs’ action into two phases. In Phase I, the trial court selected 44 bellwether Plaintiffs to be the subject of its decision whether the 2004 Changes Case: 21-1849 Document: 95 Page: 7 Filed: 06/16/2023IDEKER FARMS , INC

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caused the flooding, whether the flooding was the foreseeable or predictable result of the 2004 Changes, and whether the flooding was severe enough to be a taking

. Id. at 659, 672

– 73 , 675, 678

– 79

. The bellwether Plaintiff s presented evidence about their respective propert ies and the flooding events that occurred on their land s between 2007 and 2014. Id. Expert witnesses and government officials also testified ab out the effects of the 2004 C hanges. Id

. T he trial court found that 28 of the 44 bellwether Plaintiffs established at least causation and foreseeability or causation, foreseeability

, and adequate severity for some years of flooding between 2007 and 2014

. 1 Id. at 76 1–6 2. It dismissed the remaining 16 Plaintiffs. Id. at 763. It also found the 2004 Changes did not cause flooding in 2011 for any Plaintiff

. Id. at 691

– 93.

The Government moved for reconsideration of thePhase I opinion’s causation analysis in light of our intervening decision in St. Bernard Par ish Gov ernment v. United States

, 887 F.3d 1354, 1364 (Fed. Cir. 2018 ). S ee Ideker Farms, Inc. v. United States , 142 Fed. Cl. 222 (2019) ( Reconsideration Decision ). The trial court denied the motion, determining the exception to the causation standard identified by St. Bernard Parish was applicable to this

case

. Id. at 232.

The trial court then proceeded to Phase II

, where it tried damages and the Government’s defenses

. To assess these issues, the court selected the properties of three representative P laintiffs out of those who prevailed in Phase I : the Adkins property, the Ideker Farms propert y, and the Buffalo Hollow Farms property. Ideker Farms, Inc. v. United States , 151 Fed. Cl. 560, 567 (2020) ( Phase II ).

1 The trial court found that some bellwether Plaintiffs had not yet establish ed severity. Id. at 761

– 62. The trial court reserved the remaining severity determinations for Phase II. Id. Case: 21-1849 Document: 95 Page: 8 Filed: 06/16/2023IDEKER FARMS , INC

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Based on t he trial court’s finding that the parties agreed it was appropriate to apply the Arkansas Game & Fish II factors
, it applied those factors to this case. Id. at 584, 593 n.23 (citing Arkansas Game & Fish Comm ’ n v. United States, 568 U.S. 2 3 (2012) ( Arkansas Game & Fish II ))

. The factors , which apply to temporary, intermittent flooding

, are severity, duration, intent or foreseeability, character of the land, and the owner’s reasonable

, investment

- backed expectations. Arkansas Game & Fish II

, 568 U.S. at 31

– 39

. Applying those factors, the trial court determined the flooding was a taking of a permanent flowage easement, Phase II , 151 Fed. Cl. at 584

– 93
, that began in 2007 and stabilized on December 31, 2014. Id. at 593

– 98. The trial
court collectively awarded the three representative Plaintiffs approximately $7,000,000 for property value diminution, $1,000,000 for repairing a levee , and prejudgment interest. 2 Id. at 606, 608

– 10

. T he court ruled , however, that Plaintiffs were not entitled to compensation for crops destroyed during the stabilization period because they were consequential damages. Id. at 606 –0 8.

The Government appeals , and Plaintiffs cross

- appeal, rulings from both trial p hases . Specifically, the Government argues the Court of Federal Claims erroneously determined the accrual date for Plaintiffs’ taking claims,which resulted in the trial court’s improper exercise of jurisdiction after the statute of limitations on Plaintiffs’ claims had run. Appellant’s Opening Br. at 1

– 2. It also argues the trial court erred in its application of the Arkansas Game & Fish II factors

, the legal standard for causation, and the availability of a relative benefits defense. Id. at 2. Plaintiffs cross

- appeal, arguing the trial court erred in denying compensation for lost crops and finding the 2004 Changes did not cause the 2011 flooding. Resp. Br. and

2 The trial court stayed the remaining Plaintiffs’

cases until this appeal is resolved

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Cross -A ppeal Br. at 1. We have ju risdiction under 28 U.S.C § 1295(a)(3).

D ISCUSSION

I. G OVERNMENT ’ S A PPEAL
A. Jurisdiction As a threshold issue, the Government argues the Cour t of Federal Claims lacked jurisdiction over Plaintiffs’ claims

. See 28 U.S.C. § 2501. First, t he Government challenges the Court of Federal Claims’ use of the stabilization doctrine in this case because the effects of the flooding manifested immediately. Second, the Government contends the trial court clearly erred in finding that the claims accrued in December 2014 rather than 2007

. And because Plaintiffs filed this action in 2014, more than six years after the alleged 2007 accrual date, their claims are time

- barred. Plaintiffs respond that the trial court properly applied the stabilization doctrine because the recurring flooding establishing the taking was a gradual process . They also argue the trial court’s fact findings that the claims did not stabilize until 2014 were not clearly erroneous and that the trial court had jurisdiction

. We agree with Plaintiffs that the Court of Federal Claims had jurisdiction over this case

. A plaintiff must bring a claim in the Court of Fe deral Claims “within six years after such claim first accrues.” 28 U.S.C. § 2501. Section 2501’s six

- year limitation is jurisdictiona l

. John R. Sand & Gravel Co. v. United States , 457 F.3d 1345, 1355 (Fed. Cir. 2006) (“[W] e are unwilling to disturb the well

- settled law that section 2501 creates a jurisdictional condition precedent for suit in the Court of Federal Claims, which may not be waived by the parties .”), aff ’d , 552 U.S. 130 (2008)

. Plaintiffs bear the burden of establishing subject

- matter juris diction. K- Con Bldg. Sys., Inc. v. United States , 778 F.3d 1000, 1004 (Fed. Cir. 2015). Whether a court has subject

- matter jurisdiction is a question of law we review de novo with subsidiary fact finding s Case: 21-1849 Document: 95 Page: 10 Filed: 06/16/2023IDEKER FARMS , INC

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we review for clear error

. Nw. L a. Fish & Game Pres. Comm’n v. United States , 446 F.3d 1285, 1289 (Fed. Cir. 2006 ); Ferreiro v. United States , 350 F.3d 1318, 1324 (Fed. Cir. 2003). Under the clear error standard, we defer to the trial court’s “ findings of fact, unless there is a ‘ definite and firm conviction that a mistake has been made. ’” Biogen Int’l GMBH v. Mylan Pharms. Inc. , 18 F.4th 1333, 1341 (Fed. Cir. 2021) (quoting Scanner Techs. Corp. v. ICOS Vision Sys. Corp. N.V. , 528 F.3d 1365, 1374 (Fed. Cir. 2008) ).

A claim accrues “when all the events have occurred which fix the liability of the Government” and the plaintiff “was or should have been aware” that the claim existed. Goodrich v. United States , 434 F.3d 1329, 1333 (Fed. Cir. 2006) (quoting Hopland Band of Pomo Indians v. Uni ted States , 855 F.2d 1573, 1577 (Fed. Cir. 1988 )); Boling v. United States , 220 F.3d 1365, 1370 (Fed. Cir. 2000). In some cases, the events that give rise to liability may takeplace over extended periods of time rather than at a discrete instance. In such cases, the accrual date is determined according to the stabilization doctrine, which accounts for the difficulty of ascertaining a precise time “when the property is taken by a gradual physical process rather than a discrete action undertaken by the Gov ernment.” Mildenberger v. United States , 643 F.3d 938, 945 (Fed. Cir. 2011). Pursuant to this doctrine , where “the damages from a taking only gradually emerge, e.g., as inrecurrent flooding, a litigant may postpone a suit for a taking until ‘the situati on becomes stabilized’ and ‘the consequences of inundation have so manifested themselves that a final account may be struck.’” Nw. L a. Fish , 446 F.3d at 1290

– 91 (citation omitted); see also Cooper v. United States , 827 F.2d 762, 764 (Fed. Cir. 1987) (holding the “extent of the [tree damage due to flooding] was not ascertainable until 1984 ” even though trees began to show damage in 1979); United States v. Dickinson , 331 U.S. 745, 749 (1947) (“The source of the entire claim

— the overflow due Case: 21-1849 Document: 95 Page: 11 Filed: 06/16/2023IDEKER FARMS , INC

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to rises in the level of the river

— is not a single event; it is continuous.”).The Government argues the stabilization doctrine is inapplicable here because the effects of the 2004 Changes (i.e., the 2007 flood event itself) manifested “immediately, not gradually,” unlike cases involving flooding leading to erosion or uncontrollable aquatic plant growth. Appellant’s Opening Br. at 58

– 59. This argument misses the mark. What’s important to the accrual inquiry is not only when the effec ts of the damage are known or s hould have been known but also when “all event s which fix liability have occurred.” Nw. La. Fish , 446 F.3d at 1290 (quoting Boling , 220 F.3d at 1370). “[I] t is the uncertainty surrounding the permanent nature of the taking, and not theuncertainty surrounding the ultimate extent of the[] damage, that is critical in determining whether the situation has stabilized .” Boling , 220 F.3d at 1372. H ere, the event s fixing the G overnment’s liability are recurring flooding s over several years th at rise to a taking of a permanent flowage easement o n Plaintiffs ’ land s

. I n the flooding context

, we rejected the argument that a “takings claim accrued immediately upon the first inundation of the property because at that point, the frequency and perman ency of the flooding were still undeterminable.” Mildenberger , 643 F.3d at 945 (citing Dickinson , 331 U.S. at 749). If Plaintiffs brought a tort claim for a single flood in 2007, then the statute of limitations may have run from the date of that single flood event

. But that is not t he case here

. 3 We conclude

3 The Government argues the trial court erroneouslytreated the flooding as a continuous event instead of a single flood in 2007 based on the decision in Barnes v. United States . Appellant’s Opening Br. at 61

– 63 (citing 538 F.2d 865, 874 (Ct. Cl. 1976)). T his argument rests on the same erroneous analysis discussed below. See infra Section II .A. Case: 21-1849 Document: 95 Page: 12 Filed: 06/16/2023IDEKER FARMS , INC

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that the Court of Federal Claims properly analyzed this according to the stabilization doctrine

. T he Government also challenges the Court of Federal Claims ’ stabilization findings , specifically that the events fixing liability “continued past 2007, into 2014” and that Plaintiffs reasonably did not know and should not haveknown that the 2004 Changes caused the taking of a permanent easement. See Phase II , 151 Fed. Cl. at 595

– 96. It also argues, even if the claim s did not accrue in 2007, then the trial court’s December 31, 2014 accrual date i s unsupported by the record . Because these findings are not clearly erroneous, we reject the Government’s argument.
First, the Court of Federal Claims ’ finding that the claim s did not stabilize in 2007 (i.e., that the events fixing liability were ongoing ) is supported by the court’s findings that the modifications and their effects on the River were ongoing and dynamic

. The Government doe s not dispute that the Corps’ modifications to the River continued into 2014. Phase I , 136 Fed. Cl. at 669 (“Corps studies explain that as of 2014, the Corps had undertaken 1,697 dike notching actions, 354 major modification actions, 63 dike lowering acti ons, 36 dike extension actions, 39 side

- channel chute actions, 20 revetment chute actions, 14 backwater actions, and 3 channel widening actions.”); Phase II

, 151 Fed. Cl. at 595

– 96. Assuming these modifications causally contributed to the flooding of Plai ntiffs’ property, which we address below, that the modifications continued until at least 2014 supports the trial court’s finding that the taking had not stabilized in 2007. The modifications to the River’s water flow and its effects were ongoing, dynamic , and complex. Phase I , 136 Fed. Cl. at 702

– 05 (describing evidence of gradual changes to river topography and other characteristics ); Phase II , 151 Fed. Cl. at 596

– 97; see, e.g. , Nw. La. Fish , 446 F.3d at 1290 (“The harm in this case [aquatic plant growth] . . . did not occur (i.e., wasnot fixed) until well after” the water level reached maximum height.). This conclusion is supported by model s Case: 21-1849 Document: 95 Page: 13 Filed: 06/16/2023IDEKER FARMS , INC

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comparing the River’s water flow between 2005 an d 2013. Phase II , 151 Fed. Cl. at 595.
Second, t he Government’s argument s that Plaintiffs reasonably knew or should have known by 2007 that the 2004 Changes resulted in a taking of a permanent flowage
easement are inapt

. See Appellant’s Opening Br. at 54, 58

– 61

. The effects of ESA

- mandated changes were not immediately apparent for purposes of stabilization. T he nature of the taking is a permanent flowage easement by recurring flooding. It is reasonable t hat Plaintiffs did not know from a single flood the existence, let alone the extent, of the pattern of new and recurring flooding that would result in a permanent taking. See Boling , 220 F.3d at 1370 (“[T] he key date for accrual purposes is the date on which the plaintiff ’ s land has been clearly and permanently taken .”); Dickinson , 331 U.S. at 748

– 49 (holding statute of limitation did not run from first flooding event). The trial court credited testimony that Plaintiffs did not know the cause of the flooding until years after 2007. Phase II , 151 Fed. Cl. at 595

. This testimony is supported by the fact that the cause and effects of the recurring flooding are difficult to ascertain “ given the complex nature of the hydrology of the River. ” Id. Further, some Plaintiffs did not even experie nce flooding in 2007, and the Government does not explain how those Plaintiffs’ claims could have accrued in 2007. See Phase I , 136 Fed. Cl. at 736

– 37 (finding Corps’ actions caused flooding in 2008 and 2010), 746

– 47 (finding Corps’ actions caused floodin g in 2010 and 2013). The Government also improperly relies on the foreseeability of the taking . T he accrual inquiry examines whether Plaintiffs knew or should have known the events fixing liability occurred, not whether they could have predicted such eve nts would

occur. Mildenberger , 643 F.3d at 946 (“[C] laimants are notrequired to sue when it is still uncertain whether the gradual process will result in a permanent taking .”).
Third, we reject t he Government’s argument that the trial court’s December 31, 2014 accrual date is arbitrary Case: 21-1849 Document: 95 Page: 14 Filed: 06/16/2023IDEKER FARMS , INC

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because it is not related to any physical event. See Appellant’s Opening Br. at 59

– 61. When a reasonable plaintiff knew or should have known that his claim stabil ized does not need to correspond identically with the physical event giving rise to liability . Instead, Northwest Louisiana Fish makes clear the knowledge requirement is separate from (though obviously related to) the requirement that the events establish ing liability have occurred

. 4 446 F.3d at 1290 (“ The correct standard recites that accrual occurs when the harmed party knows or should have known of their existence and all events which fix the government ’ s alleged liability have occurred .” (emphasis ad ded) (citation and quotation marks omitted)). Here, Plaintiffs did not learn of the full scope of the River and System C hanges and their effects on flooding until several years of recurring flooding. At that point

, Plaintiffs consulted experts to confirm their suspicions about the cause of the flooding and filed suit within a few months of confirmation from those experts. See Phase II , 151 Fed. Cl. at 595

– 96. This causation and damages knowledge derived from expert opinions based on analysis of recurrent flooding during the period from 2007 to 2014 , which necessarily could not have been provided in 2007 , did not arise until 2014. The trial court’sfinding that Plaintiffs did not reasonably know that a compensable taking had occurred until that date is t hus not clearly erroneous. In short, even though stabilization may

4 At least one o ther area of federal law similarly base s claim accrual on dates other than the physical events they are tethered to, including considering the part ies’ reasonable efforts to seek expert technical advice. For example, for an injured patient seeking damages for medical malpractice under the Federal Tort Claim Act, the time fora plaintiff to understand the claimed injury and seek medical advice regarding its cause may be considered in accrual. See United States v. Kubrick , 444 U.S. 111 , 123 (1979)

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occur before “damages are complete and fully calculable,” Mildenberger , 643 F.2d at 946, the trial court’s accrual date is not clearly erroneous given the complex nature of the flooding, its effects here

, the relevant time period, and the time Plaintiff s needed to consult experts to establish causation. See Phase II , 151 Fed. Cl. at 596.
In sum, we hold the trial court properly applied the stabilization doctrine to this case a nd did not clear ly err in finding that the taking had not accrued until December 2014. T he stabilization doctrine is a “practical matter and not a technical rule of law” designed for precisely these circumstances : where the causes and effects of a taking are varied and may take time to manifest. Dickinson , 331 U.S. at 749. We affirm the C ourt of Federal Claims’ exercise of jurisdiction and it s determinations that Plaintiffs’ claims accrued December 31, 2014

. B. Takings Framework The Fifth Amendment’s Takings Clause guarantees that private property shall not be taken “for public use, without just compensation.” U.S. C ONST . amend. V, cl. 4. I f the government “ physically acquires private property,” then there is a physical taking t o which a per se rule applies. Cedar Point Nursery v. Hassid

, 141 S. Ct. 2063 , 2071 (2021)

. We assess per se takings according to a straightforward rule: “The government must pay for what it takes.” Id. (citing Tahoe

- Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency , 535 U.S. 302, 32 2 (2002 ) ). This is true regardless of the size

, invasiveness , or intermitten t nature of the physical occupation. See id

. at 2075 (“[P] hysical invasions constitute takings even if they are intermittent as op posed to continuous .”); Loretto v. Teleprompter Manhattan CATV Corp. , 458 U.S. 419, 438 (1982) (holding that requiring landlords to install cables and cable boxes tothe outside of apartment buildings, while occupying relatively little space, was a taking) ; United States v. Causby

, 328 U.S. 256, 259 (1946) (holding taking occurred where Case: 21-1849 Document: 95 Page: 16 Filed: 06/16/2023IDEKER FARMS , INC

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Army occupied airspace above plaintiff’s land for limited periods of takeoff and landing)

. In Arkansas Game & Fish II , the Supreme Court clarified that temporary flooding can be a taking and established a multi

- factor test for determining if temporary government induced flooding is a taking rather than a mere trespass. 568 U.S. at 38

– 39. T he trial court determined it “appropriate to apply the Arkansas Game & Fish factors for the taking of a permanent flowage easement by intermittent flooding ” because, in its view, the parties agreed it was appropriate to apply those factors to determine if the permanent intermittent flooding was a taking

. Phase II , 151 Fed. Cl. a t 59 2–9 3 & n.23. Though it is not clear that the parties agree d the multi

- factor test announced in Arkansas Game & Fish II is the correct legal framework for this permanent taking, 5 “[w] e are not bound to accept, as controlling, stipulations as to questions of law. ” Sanford’s Est. v. Comm’r of Internal Revenue , 308 U.S. 39, 51 (1939) (citing Swift & Co. v. Hocking Valley Ra ilway Co. , 243 U.S. 281, 289 (1917)). T he proper legal framework is a question of law the court may decide

. 6

5 Plaintiffs assumed, without conceding, that all of Arkansas Game & Fish II ’s factors applied to permanent, though intermittent, flooding simply as a “belt

- and

- suspenders” approach to its analysis, arguing it would prevail even if those factors applied. ECF No. 690 at Tr. 3389:5

– 3391:8; see Oral Arg. at 34:40

– 35:08 (Government s tating the parties “have assumed [the factors] apply”), available at https://oralarguments.cafc.uscourts.gov/default.asp x?fl=21

- 1849_11012022.mp3

.

6 To be clear, we find no factual error in the Court of Federal Claims’ application of the Arkansas Game & Fish II factors and determine Plaintiffs’ prevail under that framework. There are, however, hundreds of remaining plaintiffs whose cases have been stayed pending this Case: 21-1849 Document: 95 Page: 17 Filed: 06/16/2023IDEKER FARMS , INC

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Kamen v. Kemper Fin. Servs., Inc. , 500 U.S. 90, 99 (1991) (“When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but retains the independent power to identify and apply the proper construction of governing law.”)

. Arkansas Game & Fish II ’s multi

- factor test does not determine whether a permanent taking has been ef fected by government action that will foreseeably produc e intermittent invasions by flooding without identifiable end into the future . “In this case, however, both parties agree that if the court finds that a taking occurred, that taking is permanent.” Phase II , 151 Fed. Cl. at 585

. Rather, such action is a per se taking. Arkansas Game & Fish II involved temporary intermittent flooding that occurred during a sevenyear period that ended when the government ceased its flood- inducing actions

. 568 U.S. at 26

– 28 ; see Arkansas Game & Fish Comm’n v. United States , 736 F.3d 1364, 1366 (Fed. Cir. 2013) ( Arkansas Game & Fish III ) (decision on remand from Supreme Court, explaining that the issue was whether a “temporary taking” had occurred) ; Milton v. United States , 36 F.4th 1154, 1163 (Fed. Cir. 2022) (citing Arkansas Game approach only for “temporary taking,” not for “permanent taking”)

. The Supreme Court held “simply and only , that government

- induced flooding temporary in duration gains no autom atic exemption from Takings

adjudication. In these circumstances, it makes good sensefor us to address the proper legal framework for permanent, rather than temporary, intermittent flooding. See PaineWebber, Inc. v. Cohen , 276 F.3d 197, 206 (6th Cir. 2001) (addressing issue on appeal where factual record did not need development, the issue is one of law, and judicial efficiency favored addressing the merits). Our failure toaddress this issue would waste judicial resources and unnecessarily burden the parties on remand. Case: 21-1849 Document: 95 Page: 18 Filed: 06/16/2023IDEKER FARMS , INC

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Clause inspection .” 568 U.S. at 38. It added that when determining whether a temporary flooding is a taking instead of a trespass, courts should consider duration, foreseeability, character of the land, severity, and the reasonable

, investment

- backed expectations of the property holder

. Id. at 38

– 39. The Court repeatedly noted that permanent physical occupations, including intermittent flooding, fall on the side of the “bright line[]” of a taking and distinguished them f rom temporary invasions

. Id. at 31 –33 (collecting cases regarding “permanent physical occupation of property” and “intermittent but inevitably recurring overflows ”) ; see id. at 38

– 39. Th at intermittent (as opposed to continuous) yet permanently recurring occupations are per se takings is not a new concept

— “T here is no difference of kind, but only of degree, between a permanentcondition of continual overflow by backwater and a permanent liability to intermittent but inevitably recurring overflows ; and, on principle, the right to compensation must arise in the one case as in the other .” United States v. Cress , 243 U.S. 316, 328 (1917) ; see Nollan v. California Coastal Comm’n , 483 U.S. 825, 8 32 (1987) (stating appropriation of easement was a “perma nent physical occupation

. . . where individuals are given a permanent and continuous right to pass to and fro

, . . . even though no particular individual is permitted to station himself permanently upon the premises ” (emphasis added ))

. The trial court a ccepted based on the parties’ stipulation that the flooding in this case is permanent, not temporary , in nature. Phase II , 151 Fed. Cl. at 592

– 93. In short,
t he G overnment has not ceased and does not plan to cease flood ing Plaintiffs’ lands. To the extent Arkansas Game & Fish II ’s narrow holding and reiteration of the well

- established principle that permanent yet intermittent physical invasions are per se takings is not enough, t he Supreme Court’s decision in Cedar Point

, issued after the tria l court decision in this case , makes th at abundantly clear . It stated that the “ approach in Arkansas Game and Fish Case: 21-1849 Document: 95 Page: 19 Filed: 06/16/2023IDEKER FARMS , INC

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Commission reflects nothing more than an application of the traditional trespass

- versus

- takings distinction to the unique considerations tha t accompany temporary flooding.” 141 S. Ct. at 2078

– 79 (emphas e s added) ; id

. at 2075 (“[P] hysical invasions constitute takings even if they are intermittent as opposed to continuous .”). In contrast to the temporary intermittent flooding at issue in Arkansas Game & Fish II

, Cedar Point explain ed that permanent intermittent flooding is a physical taking subject to a per se rule

. Id. at 2071 (citing Cress , 243 U.S. at 327

– 28 )

. The “governm ent likewise effects a physical taking when it occupies property

– say by recurrent flooding as a result of building a dam. These sorts of physical appropriations constitute t h e ‘clearest sort of taking,’ a nd we assess them using a simple,
per se rule: The government must pay for what it takes.” 7 Id. (citations omitted).This is not to say that an analysis of whether a permanent taking or a trespass has occurred might not overlap in part with the Arkansas Game & Fish II analysis of whether

a temporary taking or trespass occurred . But sometimes distinguishing between takings and trespasses will be much simpler. This is such a case. W here the government takes a permanent right of access, akin to an easement in gross, even if used only intermi ttently, it is unquestionably an appropriation of the owner’s right to exclude. It is undisputed that the Corps has permanently burdened Plaintiffs’ land with a right to access their land with flood
waters. 8 Phase II , 151 Fed. Cl. at 585, 592

– 93, 596. And

7 Moreover, the inapplicability of the Arkansas Game & Fish II factors to permanently recurring flooding is supported by the fact that some factors, like duration, are irrelevant in the permanent context

.

8 To the extent stayed Plaintiffs’ have not established that flooding will be permanently recurring, the trial court shall determine that where necessary on remand. Case: 21-1849 Document: 95 Page: 20 Filed: 06/16/2023IDEKER FARMS , INC

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as in Cedar Point , where California granted union workers “a formal entitlement to physically invade” the farmers’ land, 141 S. Ct. at 2080, here the Government has permanently caused recurring physical occupation of Plaintiffs’ land by floodwaters. T he fact that the floodwaters come and go during the year, i.e., are intermittent, does not negate the existence of a taking. Those considerations “bear only on the amount of compensation.” Id. at 2074.

In cases that are closer calls than this one , cour ts must continue to rely on Arkansas Game & Fish II and Ridge Line

. 568 U.S. at 38

– 39; 346 F.3d at 1355

– 57; see Moden v. United States , 404 F.3d 1335, 1342 (Fed. Cir. 2005) . Indeed, while not rigid, the trespass

- versus

- taking inquiry focuses on whether government actions are “ [i] solated physical invasions, not undertaken pursuant to a granted right of access, [which] are properly assessed as individual torts rather than appropriations of a property right. ” Cedar Point , 141 S. Ct. at 2078. For e xample, up to three flooding events “by themselves” do not qualify as (even a temporary) taking . Nat’l By

- Prod., Inc. v. United States

, 405 F.2d 1256, 1273 (Ct. Cl. 1969) (collecting cases); see Ridge Line , 346 F.3d at 1357 (“ [I ]solated invasions, such as one or two floodings .

. . do not make a taking .

. . but repeated invasions of the same type have often been held to result in an involuntary servitude.” (quoting Eyherabide v. United States

, 345 F.2d 565, 569 ( Ct. Cl. 1965) )); see also Cary v. United St ates , 552 F.3d 1373, 1381 (Fed. Cir. 2009)(collecting cases distinguishing permanent and intermittent flooding from isolated incidents). In sum, t his inquiry essentially distinguishes a physical appropriation from an “occupancy that is transient and relatively inconsequential ,” such as a “truckdriver parking on someone’s vacant land to eat lunch .” Hendler v. United States , 952 F.2d 1364, 1377 (Fed. Cir. 1991)

. Accordingly, Arkansas Game & Fish II ’s multi

- factor
test does not apply to permanently recurring flooding

. Instead, such flooding that foreseeably or intentionally Case: 21-1849 Document: 95 Page: 21 Filed: 06/16/2023IDEKER FARMS , INC

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results from government action is a categorical physical taking. See Ridge Line

, 346 F.3d at 1355

– 56. To be clear, we do not alter or amend our t respass

- versus

- takings jurisprudence or question the applicability of Arkansas Game & Fish II to temporary floodings. Cedar Point , 141 S. Ct. at 2078 (“[O] ur holding does nothing to efface the distinction between trespass and takings. Isolated physical inv asions, not undertaken pursuant to a granted right of access, areproperly assessed as individual torts rather than appropriations of a property right .”). Nor do we establish a hardline rule for establishing what is a permanent or recurring flooding . We simply reinforce the principle that the permanent appropriation of a flowage easement is “clear enough” to be on the side of a per se taking and not a trespass. See Hendler , 952 F.2d at 1371.

C. Causation
The causation inquiry in this ca se requires us to assess the proper temporal baseline for measuring whether the 2004 Changes caused the flooding on Plaintiffs’ properties

. Th e causation analysis depends on which “ but for ” world the effects of the 2004 Changes are measured against: the

o ne predating the Mainstem System and BSNP under the 1944 FCA or the world with the Mainstem System and BSNP as it existed between 1967 and 2004. T he but for world with the Mainstem System and BSNP , i.e., comparing the circumstances after the 2004 Changes to the circumstances right before those changes

, is the proper one for assessing causation. The Court of Federal Claims determined the proper inquiry for causation was to compare “the ‘but for’ world before the Cor ps began to undertake significant actions to return the River to a more natural state in 2004 [with] the current post

- 2004 world” that reflects the Corps’ 2004 C hanges. Reconsideration Decision , 142 Fed. Cl. at 232. Applying that baseline

, the trial cour t found the 2004 Changes “ led to more increased and more severe flooding Case: 21-1849 Document: 95 Page: 22 Filed: 06/16/2023IDEKER FARMS , INC

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than would have occurred had these Changes not been made

. ” Phase I , 136 Fed. Cl. at 697. Approximately one month after the trial court rendered its Phase I decision

, we issued St. B ernard P arish . In St. Bernard Parish , we reversed a trial court ’s determin ation that the government

cause d a taking by flooding because it had built a navigation channel that “create[d] a risk of flooding”

— a determination we held to violate causation principles because

“ subsequent government action designed to mitigate that risk” was wholly “ignored” in the plaintiff’s proof of a taking

. 887 F.3d at 1364 (emphasis added)

. Based on that decision, t he Government filed a motion for reconsideration , even though what the Government seeks to b uild into the “but for” world here is not government flood

- reducing actions after the challenged government flood

- increasing action (as in St. Bernard Parish ), but, instead, government flood- reducing actions that were taken before

–– indeed, a very long time before

— the challenged government flood

- increasing actions. The trial court denied the motion, determining St. Bernard Parish did not u ndermine its causation analysis

, explaining that, under the legal authority that governs this distinct situation, the proper baseline for the causation analysis was the world just before the 2004 Changes , and not before the Mainstem System and BSNP project s, because the 2004 Changes were “outside the contemplation of the Corps” when the much earlier Mainstem System and BSNP were planned

. Reconsideration Decision , 142 Fed. Cl. at 232.

The Government argues the trial court’s baseline is
wrong , Appellant’s Opening Br. at 15

– 18, 26

– 34 , because it did not “ consider both [flood] risk

- increasing and [flood] risk

- decreasing government actions. ” See St. Bernard Parish

, 887 F.3d at 136 5

. T he Government argues the proper analysis is to compare the curr ent world (i.e., with the 2004 flood risk

- increasing action) to the but for world where the Corp s never improved the River under the 1944 FCA (i.e., with out the Mainstem System and BSNP )

. Plaintiffs Case: 21-1849 Document: 95 Page: 23 Filed: 06/16/2023IDEKER FARMS , INC

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respond that the trial court properly compared the current post

- 2004 River to that which existed right before the Government m odified the Mainstem System and BSNP to return the River to its natural state. Resp. Br. and Cross

Appeal Br. at 30

– 47

. They argue St. Bernard Parish does not apply because of the Hardwicke exception

, which St. Bernard Parish itself recognizes as addressing the situation where “[flood] risk

- reducing government action preceded the [flood] risk

- increasing action, ” in which case “ the [flood] risk

- reducing action would only be considered in assessing causation if the risk

- increasing action was ‘contemplated ’ at the time of the [flood] risk

- reducing action .” 887 F.3d at 1367 n.14 (quoting John B. Hardwicke Co. v. United State s , 467 F.2d 488, 490

– 91 (Ct. Cl. 1972)) (emphasis added) . And under the Hardwicke exception, itself well

founded in Supreme Court authority, the trial court’s causation standard is correct , they argue, because the 2004 Changes would not have been contemplated when the FCA

was enacted in 1944 . Resp

. Br. and Cross -A ppea l Br. at 47

– 49. Plaintiffs are correct that the Hardwicke exception applies and that the Court of Federal Claims did not clearly err in applying it to this case.
In determining whether the effects of the Mainstem System and BSNP are excluded from assessing whether the 2004 Changes caused flooding on Plaintiffs’ properties

, we examine whether a reasonable property owner at the time the taki ng occurred would have understood the 2004 Changes to be “probably within the scope of the project [i.e., the 1944 FCA] from the time the Government was committed to” the project

. See United States v. Miller , 317 U.S. 369, 377 (1943) ; Hardwicke , 467 F.2d at 490 (quoting United States v. Reynolds , 397 U.S. 14, 18 (1970) )

. There is no bright line rule for determining whether an action was probably within the scope of the project. Reynolds , 397 U.S. at 21 (stating Miller ’s “ application to any par ticular set of facts requires discriminating judgment ”). Satisfying the Miller r ul e does not require that the 2004 Changes Case: 21-1849 Document: 95 Page: 24 Filed: 06/16/2023IDEKER FARMS , INC

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w ere explicitly part of the original plans for the 1944 FCA

. Id

. T he G overnment’s representations regarding the scope of the project , the foreseeability of the action

, and t heamount of time that has passed between the original action , i.e., the 1944 FCA, and the action allegedly giving rise to liability , i.e., the 2004 Changes, are also relevant

. TheFifth, Eighth, Ninth, Tenth, and Eleventh Circuits consider some or all of these factors. See United States v. 62.17 Acres of Land, More or Less, in Jasper Cnty. , 538 F.2d 670, 680 (5 th Cir. 1976) (listing factors); United States v. Crance , 341 F.2d 161, 165

– 66 (8 th. Cir. 1965) (de termining government’s second alleged taking was within scope of first taking because recreational areas adjacent to dam were “contemplated .

. . from [the project’s] inception” and government did not make any representations to contrary); United States v. Eastman , 528 F. Supp. 1177 (D. Oregon 1981), aff’d and opinion adopted , 714 F.2d 76 (9 th Cir. 1983); United States v. 49.01 Acres of Land, More or Less, Situate d in Osage Cnty. , 669 F.2d 1364, 1369 (10 th Cir. 1982) (stating that “[l] ength of time between commencement of a project and condemnation of property may be a factor in determining reasonableness of a landowner ’ s belief ” that their property was not within scope of project); Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11 th Cir. 1981) (ad opting Fifth Circuit decisions issued prior to September 30, 1981). The Government argues that under Hardwicke

, if the government provides flood protection to any land , then “an eventual return to the pre

- project status quo” must be contemplated. Appell ant’s Opening Br. at 31; Oral Arg. at 6:57

– 8:04

. In other words, the Government argue s it may always reinunda te land with flooding (or at least increase the risk of flooding) as long as at some point in time it decreased the risk of flooding to that land. T hat position is contrary to Miller

. It fails to acknowledge that Miller (and thus Hardwicke ) provide that the 2004 changes, if uncontemplated as within the scope of the 1944 FCA, may be Case: 21-1849 Document: 95 Page: 25 Filed: 06/16/2023IDEKER FARMS , INC

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assessed for causation without regard to the effects of the Mainstem System and BSNP

. If the 2004 Changes that caused flooding were not “within the scope of the [1944 FCA] ” that provided flood protection

, then the Government is not immune from liability for flooding Plaintiffs’ land by virtue of having constructed the Mainstem System and BSNP in the first place. Miller

, 317 U.S a t 377 ; see Hardwicke

, 467 F.2d at 393; 3 Nichols on Eminent Domain § 8A.01 [11.B] (2022) (“ Even though the condemnee’s land may have experienced an appreciation in value as a result of a proposed public improvement, the condemnee may be able to recover the enhanced value if the condemnee can establish that his or her property was outside the scope ofthe government’s project at the time the government initially committed to the project. ”). T he Government’s proposed rule also ignores the Fifth Amendment’s ro ots inboth principles of fairness and equity and doctrines of property law. United States v. Virginia Elec. & Power Co. , 365 U.S. 624, 631 (1961) ; United States v. Fuller , 409 U.S. 488, 490 (1973) ; see Arkansas Game & Fish II , 568 U.S. at 31 (“ The Takings Clause is designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” (quotation marks omitted)). In short, Miller and Hardwicke teach that if the government provides value to landowners by virtue of a first project, it cannot subsequently take proper t y under the scope of a second project not contemplated by the first project without providing just compensation. The Court of Federal Claims did not e rr in applying Hardwicke and Miller to this case.Nor did the Court of Federal Claims clearly err in finding that a reasonable property owner, at the time the Government took a permanent flowage easement, would haveunderstood the 2004 Changes, which were required to comply with the ESA, to not have been contemplated as part of the Mainstem System and BSNP flood-control projects completed by 1967 pursuant to the 1944 FCA. The Corps’ Case: 21-1849 Document: 95 Page: 26 Filed: 06/16/2023IDEKER FARMS , INC

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primary objectives for its actions under the FCA were for flood control, even to the detriment of other objectives. The

“ Un ited States expected people to be protected from flooding along the River following the construction of the Mainstem System and BSNP .” Phase II , 151 Fed. Cl. at 591. Indeed, based on these flood

- control expectations, agricultural production increased and developers moved in. J.A. 50,681 (National Academy of Sciences report); J.A. 52,886 (National Park Service r eport). Though wildlife andrecreation were considered as part of the flood control program, before 2004, they were prioritized below flood contr ol. See Ubbelohde , 330 F.3d at 1027. Further, because the 2004 Changes were antithetical to the original FCA priorities, it stands to reason the Corps,and certainly property owners, would not have contemplated eliminating the flood control functions of the BSNP by rever t ing its vast physical modifications. 9 Indeed, theflooding caused by the 2004 Changes would not have occurred but for the separate, intervening obligations Congress enacted under the ESA. It was not until aftersignificant intervention by the FWS, which the Corps resisted, that the Corps implemented the 2004 Changes. In other words, under the 1944 FCA, the Corps never contemplated reconnecting the River to its floodplain after disconnecting it. It follows a fortiori that a reasonable property owner would not have expected the Corps to do so.

9 While the FCA gives the Corps discretion in themanagement of the River, the Government does not dispute flood control is the FCA’s and 1979 Master Manual’s top priority while other considerations are secondary. See Oral Ar g. at 4:26

– 43. The Eighth Circuit has held the 1979 Master Manual to be binding on the Corps. Ubbeloh de , 330 F.3d at 1028

– 30; see Mo. River Sys. Litig. , 421 F.3d at 628 n.6. The Government provides no reason why we should determine differently. Case: 21-1849 Document: 95 Page: 27 Filed: 06/16/2023IDEKER FARMS , INC

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This case is analogous to United States v. 172.80 Acres of Land, More or Less, Situate d in Mercer C nty. , 350 F.2d 957 (3d Cir. 1965)

. I n Mercer County , the Corps built a damand condemned nearby land for recreational and public facilities. Id. at 957. The government successfully negotiated with the plaintiffs for a flowage easement over about 20 acres of their land and assured them those acres “were
t he only parts of their land that would be needed for the project.” Id. at 957

– 58. Later, the government reversed course and condemned an additional 80 acres, which had increased in value because of the dam and improvements. Id. In holding that the plai ntiffs were entitled to compensation for the increased value attributable to the government project , the court reasoned “ a purchaser contemplating the acquisition and private development of [plaintiffs’ property] .

. . after

. . . initiation of the reservo ir project could reasonably anticipate that he would be ableto devote the land to its highest economic use, enjoying advantages inherent in the proximity of the nearby government development without serious apprehension that his land would soon be condemn ed .” Id. at 959. Similarly here, Plaintiffs “could reasonably anticipate” that their lands, which were free of annualized flooding for decades, wouldnot be intermittently flooded for purposes of wildlife protection based on the Government’s intervening and unrelated actions

. See id. Contrary to the Government’s arguments on appeal, St. Bernard Parish is distinguishable from this case

. St. Bernard Parish recognize d that under Har d wicke , “ if the risk

- reducing government action preceded the risk

- increasing action, the risk

- reducing action would only be considered in assessing causation if the risk

- increasing action

was ‘contemplated’ at the time of the risk

- reducing action. ” 887 F.3d at 136 7 n.14 ( quoting 467 F.2d at 490

– 91)

. The 2004 Changes that increased the risk of flooding were not contemplated under the 1944 FCA that decreased the risk of flooding. And unlike here

, St. Bernard Parish involved Case: 21-1849 Document: 95 Page: 28 Filed: 06/16/2023IDEKER FARMS , INC

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a first government action that increased flooding risk before a second government action reduced the risk offlooding. Id. at 1367. T he trial court properly held St. Bernard Parish does not alter the causation analysis in this case. The trial court properly evaluated the relevant government

ac tions . We therefore see no error in the trial court’s ruling on this issue

. D. Relative Benefits
Finally, the parties dispute the applicability to this case and the scope of the so

- called “relative benefits” doctrine , which states: “ 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. ” United States v. Sponenbarger , 308 U.S. 256, 266

– 67 (1939)

. After Phase I of the present case, the Government moved to amend its answer to include a relative benefits defense. See Ideker Farms, Inc. v. United States , 146 Fed. Cl. 413, 414

– 15 (2020) ( Motion to Amend Order ). The trial court denied the motion, reasoning, inter alia

, that the 2004 Changes were for different purposes and not contemplated in the construction of the Mainstem System and BSNP and that a relative benefits defense was thus unavailable

. Id . at 42 1– 23 . The Government , mirroring its causation argument (rejected above), contends that the relative benefits doctrine bars Plaintiffs’ claims because the harm of the Corps’ 2004 Changes are outweighed by the benefits of the Mainstem System and BSNP. See Appellant’s Opening Br. at 42. Plaintiffs respond that the relative benefits doctrine is inapplicable because

, inter alia

, it does not take into account the benefits conferred by all government actions. Resp

. Br. and Cross

- Appeal Br. at 49

– 52. We agree with Plaint iffs. The relative benefits doctrine “is closely related to, but distinct from, the issue of causation.” Alford v. United States , 961 F.3d 1380, 1383 (Fed. Cir. 2020). As with Case: 21-1849 Document: 95 Page: 29 Filed: 06/16/2023IDEKER FARMS , INC

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causation, not “ all government benefits must be considered under the relative benefits doctrine.” Id. at 1386. Specifically, the relative benefits doctrine focuses on the benefits and detriments of the government actions under the same
program. See Sponenbarger , 308 U.S. at 261

– 62 , 266

– 67 (analyzing only benefits and detriments of 1928 actions while excluding benefits and detriments of 1883 Eads plan) ; see Jackson v. United States , 230 U.S. 1, 6 –7 (1913) (describing government’s flood protection history relevant
to Sponenbarger ) ; s ee also A lford , 961 F.3d at 1384 (finding decision to raise lake level and flood plaintiffs ’ land caused less damage than if Corps allowed levee system to be breached); Bartz v. United States , 633 F.2d 571, 578 (Ct. Cl. 1980) (analyzing harms of dam operation causi ng raised water levels on adjacent farms against benefits of control at all other periods of same dam); Accardi v. United States

, 599 F.2d 423, 430 (Ct. Cl. 1979) (analyzing harm of river flow with and without single dam in operation).

The 2004 C hanges and the Mainstem System and BSNP were different projects under different programs spread out over decades and directed to different purposes

. Just as the Court in Sponenbarger analyzed the benefits and detriments of the 1928 flood control without r egard to the benefits of the 1883 Eads plan

, we conclude that the benefits of the 1944 FCA should not be weighed against the detriments of the 2004 Changes

. See Sponenbarger , 308 U.S. at 261

– 62, 266

– 67

. We also find this case to be critically different f rom Alford

, where plaintiffs would have

“ been far worse off” and “suffered more serious damage” from flooding if the government had not engaged i n t he alleged taking of rais ing the lake ’s water level to prevent a levee breach

. See 961 F.3d at 138 5– 86. Plaintiffs here did not benefit in any way from the 2004 Changes. Moreover,
t he 2004 Changes were directed to mitigat ing environmental and wildlife degradation while the Mainstem System and BSNP were directed to mitigating flooding risks. See id. at 1384 (“ The relative benefits doctrine considers

. . . Case: 21-1849 Document: 95 Page: 30 Filed: 06/16/2023IDEKER FARMS , INC

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only government activities directed to mitigating the type of problem that caused the damage .” (emphasis added) ). In this case, considering the Mainstem System and BSNP along with the 2004 Changes w ould nullify our application of Miller and Hardwicke because it would consider the effects of actions that were outside the scope of the project and excluded for purposes of causation. We see no error in the trial court’s application of th e relative benefits doctrine

. The Court of Federal Claims had jurisdiction over thiscase and properly applied the causation and relative benefits framework. We also clarify that permanent recurring floodings are per se takings. We therefore affirm the trial court’s findings.

II

. P LAINTIFFS ’ C ROSS -A PPEAL
Plaintiffs cross

- appeal, argu ing the trial court erred in two respects. First, they argue the Court of Federal Claims improperly rejected Plaintiffs’ claims for crop damages. Second, they argue the trial court clearly erred in finding the Government’s actions did not cause the flooding o f their land s in 2011 , which coincided with periods of extreme runoff and flooding . We agree on both grounds.

A. Crop Damages After finding the Corps caused recurring flooding on Plaintiffs’ land , t he trial court analyzed whether Plaintiffs ’ claims for lost crops and other property were compensable. Phase II , 151 Fed. Cl. at 606

– 608. It held “ crop losses and lost profits based on reduced yields, damage to structures, damages to equipment, flood prevent ion expenses, and flood reclamation expenses” are “consequential damagesthat are an indirect result of the taking of the flowage easement” and therefore non

- compensable

. Id

. at 607. The trial court, however, awarded Plaintiff Ideker Farms “severance damages ” (i.e., expenses for “mitigating damages Case: 21-1849 Document: 95 Page: 31 Filed: 06/16/2023IDEKER FARMS , INC

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caused by the taking” ) for costs of repairing a levee in 2010. Id

. at 608. Plaintiffs argue their lost crops are compensable under the Fifth Amendment because the diminution of propertyvalue is a separate compensable interest from the destruction of their crops. Specifically, while the flowage easement awarded by the trial court compensates Plaintiffs for the taki ng caused by future flooding, it does not compensate them for past damages

. Resp

. Br . and Cross

- Appeal Br. at 72 –74 (citing Arkansas Game & Fish III

, 736 F.3d at 1370 ). The Government responds that the trial court did not err because crop losses occurrin g prior to a taking date result from a trespass , not a taking. Appellant’s Reply Br. and Cross

- Appeal Resp

. Br

. at 42

– 46 (citing Barnes , 538 F.2d
at 87 4). The Fifth Amendment protects private property “ without any distinction between different types.” Horne v. Dep’t of Agric. , 576 U.S. 350, 358

– 59 (2015) (citation omitted).

“ The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home .” Id. (citation omitted). Just compensation requiresputting the property owner “in as good a position pecuniarily as if his property had not been taken.” Olson v. United States , 292 U.S. 246, 255 (1934). As a result, c ourts must determine whether the Government appropriated a property interest and ensure the owner is compensated for that interest in awarding damages. Damages are not limited to the “time of the alleged taking” and include “past, present, and prospective” damages. Ridge Line , 346 F.3d at 1359. We measure “the fair market value of [the] property at the time of the taking.” Yuba Nat. Res., Inc. v. United States

, 904 F.2d 1577, 1581 (Fed. Cir. 1990) (alteration in original) (citation omitted). The parties do not di spute that crops and other equipment are property under the Fifth Amendment. T he parties dispute only whether crop s and other equipment damages are consequential damages. Case: 21-1849 Document: 95 Page: 32 Filed: 06/16/2023IDEKER FARMS , INC

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Damages collateral to those caused by the government’s physical appropriation of a property right are consequential damages not within the scope of the Fifth Amendment. See Mitchell v. United States , 267 U.S. 341, 345 (1925) (“If the business was destroyed, the destruction was an unintended incident of the taking of land.”). The line between direct and consequential damages is drawn where the “owner’s relation

. . . to the physical thing” ends and “other collateral interests which may be incident to his ownership” begin

. U nited S tates v. Gen

. Motors C orp. , 323 U.S. 373, 378 (1945) (emphasis added)

. This includes, for example, lost profits, loss of goodwill, and the cost of moving into a new facility. Id. T he government is responsib le only for losses to the owner’s bundle of rights as distinguished from losses to other interests , including value generated from the owner’s use of property.

Plaintiffs’ crops and other personal property destroyed by flooding are compensable under the Fifth Amendment

. The Court of Federal Claims determined damages “aboveand beyond the value of the flowage easement” were an “indirect result of the taking of the flowage easement.” Phase II , 151 Fed. Cl. at 607. T he Government

- induced flooding

, however, directly took both a permanent flowage easement

on Plaintiffs’ land and destroyed Plaintiffs’ crops. 10 In

10 E ven though state law generally determine s the scope of the property interest, Cedar Point , 141 S. Ct. at 2075

– 76 ; cf. Tyler v. Hennepin C nty. , 143 S. Ct. 1369, 1375 ( 2023 ) (explaining that other sources of law may govern what “property” is protected from takings)

, w hether the crops are considered a part of the value of the real estate or separate personal property under state law , their value must be paid to the owners. 2 Nichols on Eminent Domain § 5.03 (2022) (“It does not matter whether the annexations were affixed by operation of nature, as in the case of trees, herbage, water, mines, or minerals, or by artificial means, Case: 21-1849 Document: 95 Page: 33 Filed: 06/16/2023IDEKER FARMS , INC

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other words, the loss of the Plaintiffs’ crops was not merely an injury collatera l to the loss of their land; though the same government action caused both, it was a separate and independent loss of compensable property in its own right. Moreover, t he value of crops physically appropriated is distinguishable from revenues Plaintiffs expected from unplanted seeds that were not destroyed by the flooding. See Oral Arg. at 32:57

– 33:10. Plaintiffs do not claim compensation consequential to the taking of an easement

— rather, they seek compensation for the government’s a ppropriation of two distinct property interests

. The cases the Government cites are inapposite. Barnes does not control and conflicts with the Court of Federal Claims’ findings

. Barnes excluded from compensation crop damages that occurred after the fir st government

- induced flood and before the stabilization date four years later, reasoning “ crop damages sustained prior to the date of taking

. . . are the product of tortious invasions ” and not a taking. 538 F.2d at 873

– 74. Barnes ’ conclusion that damages occurring during stabilization are not subject to taking liability is premised on the legal rule that “[g] overnmentinduced flooding not proved to be inevitably recurring occupies the category of mere consequential injury, or tort .” Id. at 870 , 87 4 (citing Sanguinetti v. United States , 264 U.S. 146 (1924) ). Arkansas Game & Fish II repudiated that rule in reversing our holding that a taking occurs only

such as buildings, fences, or other structures. In bothcases, if they are acquired by eminent domain, compensation m ust be paid to the owner.” ); see Horne , 576 U.S. at 355, 370 (holding farmers must be given “fair marketvalue” of raisins government regulation required the farmers to set aside for “reserve raisins”); United States v. 131.68 Acres of Land, More or Less, Situated in St. James Parish , 695 F.2d 872, 875

– 76 (5th Cir. 1983) (collecting

cases awarding crop damages). Case: 21-1849 Document: 95 Page: 34 Filed: 06/16/2023IDEKER FARMS , INC

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when flooding is “ a permanent or inevitably recurring condition, rather than an inherently tempor ary situation .” 11 See Arkansas Game & Fish Comm ’ n v. United States , 637 F.3d 1366, 1378 (Fed. Cir. 2011) ( Arkansas Game & Fish I ) (citing Barnes , 538 F.2d at 868

– 69, 872), rev’d and remanded , 568 U.S. 23

. O n remand in Arkansas Game & Fish III , we awarded damages for trees destroyed by temporary, intermittent government

- induced flooding s that occurred over a s even- year period

. 736 F.3d at 1370

. There is no material distinction between the destroyed crops here and the damage d timber we held compensable in Arkansas Game & Fish III

. Id. at 136 7– 69

. Indeed, the C ourt of F ederal C laims determined the taking began “in 2007 [] when flooding attributable to” the Corps ’ actions began. Phase II , 151 Fed. Cl. at 597

– 98. Nor is there any meaningful d istinction between the crops destroyed by flooding and the levee destroyed by the same flooding that the trial court awarded damages for. 12

11 The Government argues Barnes is still good law because Arkansas Game & Fish II never mentioned Barnes

no r answered whether damages occurring during stabilization are compensable

. See Appellant’s Reply Br. and Cross

Appeal Resp

. Br. at 43. While the Government is correct Arkansas Game & Fish II did not expressly cite Barnes , it nevertheless fatally undermined Barnes ’ rationale. 568 U.S. at 38 (stating limited holding was that temporary flooding is not exempt from takings). P recedent is not ironclad un til the Supreme Court explicitly says otherwise— “It is established that a later panel can recogniz e that the court’s earlier decision has been implicitly overruled as inconsistent with intervening Supreme Court authority.” Troy v. Samson Mfg. Corp. , 758 F.3d 1322, 1326 (Fed. Cir. 2014) (emphasis added)

. 12 It is unclear whether any Plaintiff contin ue s to pursue losses to personal property other than crops

. See Resp

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Similarly, the Government’s argument t hat awarding crop damages separate from the permanent easement would constitute non

- compensable lost profits misapprehends the distinction between the crops and the land they
grow on

. See Phase II , 151 Fed. Cl. at 607; Appellant’s Reply Br. and Cross

- Appe al Resp

. Br

. at 45. Just because lost profits from operating a business are not compensable does not mean that the underlying property of a business is not compensable if destroyed or otherwise taken

. The former, but not the latter, is merely incident al to the taken property

.Of course, that lost crops are compensable does not resolve the question of the quantum of damages. That question depends upon the nature of the crops themselves. For mature crops, like other forms of property, just compensation is simply the market value of the crops

. Measuring immature crops requires more work because it “ not customary to buy or sell growing crops .” United States v. 576,734 Acres of Land, More or Less, in Montgomery Cnty.

, 143 F.2d 408, 409 (3d Cir. 1944)

. T he lack of a customary market for immature crops does not mean the Government is absolved of its constitutional obligation to provide “just” compensation. 13 See generally United States v.

Br. and C ross -A ppeal Br. at 72 (mentioning “damages to physical structures” in passing); Cross

- Appeal R eply Br. at 21 (discussing damage to “farm structures”); Phase I , 136 Fed. Cl. at 747

– 49 (stating Plaintiff Ideker Farms ’ grain bins and irrigation equipment w ere destroyed or damaged). To the extent any Plaintiff seek s such damages

, the trial court should apply the guidance discussed here.

13 The trial court suggested mature crops are compensable while immature crops are not. Phase II , 151 Fed. Cl at 608 n.30 (citing Barnes , 572 F.2d at 874). But , as explained, Barnes excluded immature crops because they Case: 21-1849 Document: 95 Page: 36 Filed: 06/16/2023IDEKER FARMS , INC

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Commodities Trading Corp. , 339 U.S. 121, 123 (1950) (“ B ut when market value has been too difficult to find, or when its application would result in manifest injustice to owneror public, courts have fashioned and applied other standards .”). Takings liability is not so easily avoided based on such formalities. Cedar Point , 141 S. Ct. at 2076 (stating
state

- law formalities do not preclude liability). On remand, the trial court should calculate the value of immature crops based on the “probable yield at harvest had the crop not been destroyed” multiplied by its “ market value at maturity minus costs of further cultivation, harvesting, and marketing ” that the farm er did not incur

. St. James Parish , 695 F.2d at 875

– 76 (collecting cases); Daily v. United States

, 116 Ct. Cl. 723 , 731 (1950); Montgomery Cnty. , 143 F.2d at 409

.It was erroneous to exclude crop damages occurring between 2007 and 2014 from the damages calculation. We therefore vacate the Court of Federal Claims’ determinatio n that Plaintiffs’ claims for lost crop damages were not compensable and remand for further fact finding consistent with this opinion.

B. 2011 Flooding

Plaintiffs next argue the Court of Federal Claims erred in finding the Government did not cause flood damages in 2011. In many respects, the flooding in 2011 was unique compared to the flooding in other years. Most notably, the volume of runoff in the River basin in 2011 was the most in over a century. T he trial court found that the Corps’ “Syste m releases in 2011 were not part of the single purpose” of protecting endangered species and that Plaintiffs therefore could not establish the 2011 flooding was caused by the 2004 Master Manual’s release requirements

. Phase I , 136

were destroyed prior to the date of taking

, a fact not present here

. See 572 F.2d at 874. Case: 21-1849 Document: 95 Page: 37 Filed: 06/16/2023IDEKER FARMS , INC

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Fed. Cl. at 678, 691, 69 2– 93. Because the trial court clearly erred in both findings , we vacate and remand for further factfinding. Regarding the court’s “single purpose” analysis, the trial court found the 2011 releases had “nothing to do with ESA compliance.” Id. at 691. This finding is premised on the narrow view that the decisions to release water in 2011 were not based on benefiting endangered species. Id . at 691

– 92. E ven if that were true, this does not consider the effects of the 2004 Changes in the first place

, whi ch could have impacted the severity of the flood damage in 2011. The trial court also failed to consider , despite the record rain fall

, whether the Corps’ actions increased the severity or duration of the 2011 flooding compared to what was attributable to record rainfall

. 14 Given the voluminous record and the parties ’ agreement that remand is appropriate based on our affirmance of the other legal issues in this

case , we need not address the remaining arguments. See Oral Arg . at 37:45

– 38: 59
, 43:44

– 44:14

. We vacate and remand.

C ONCLUSION We have considered the parties’ remaining arguments and find them unpersuasive. For the reasons given above,we affirm the Court of Federal Claims’ judgment with respect to Plaintiffs’ takings claims. We v acate the trial court’s denial of crop damages and its finding that the Government did not causa lly contribute to the 2011 flooding

14 The parties dispute whether Plaintiffs presented, and thus preserved, an argument concerning the apportionment of damages alleged to be attributable to the 2004 Change s as opposed to the excessive runoff in 2011. On remand, t he Court of Federal Claims should consider, on a plaintiff

- by

- plaintiff basis, whether such an argument was raised and preserved

. Case: 21-1849 Document: 95 Page: 38 Filed: 06/16/2023IDEKER FARMS , INC

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and remand for further consideration consistent with this opinion.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

C OSTS
Cos ts awarded to Plaintiffs

- Cross

- Appellants

. Case: 21-1849 Document: 95 Page: 39 Filed: 06/16/2023