Introduction
On August 29, 2005, Hurricane Katrina devastated the Gulf Coast of Louisiana, including New Orleans and nearby St. Bernard Parish.1 Storm surge as high as twenty-one feet rose suddenly, overwhelming the levee system around the parish and leaving many residents in need of rescue.2 Over 170 people died in St. Bernard Parish alone,3 out of the 1,833 killed across the Gulf Coast.4 The flooding took weeks to subside and left homes waterlogged and moldy, with cherished possessions lost to the current.5 One year after Hurricane Katrina, the population of St. Bernard Parish was 42,000 people smaller than before the storm.6 Over 8,300 unsalvageable homes were demolished; those empty lots leave a stark reminder of the storm’s steep toll.7
The government of St. Bernard Parish, along with private property owners in the parish and the Lower Ninth Ward of New Orleans, claimed that the severity of the flooding was caused by the construction and operation of the Mississippi River Gulf Outlet (MR-GO) navigation channel by the Army Corps of Engineers (Army Corps).8 After an unsuccessful tort lawsuit,9 the parish government and property owners turned to takings law for relief.10 Although the United States Court of Federal Claims (Claims Court) initially found that the Army Corps’ construction, operation, and lack of maintenance of the MR-GO caused the flooding of plaintiffs’ property and so was a taking of private property for which the Army Corps must provide compensation,11 the United States Court of Appeals for the Federal Circuit reversed based on two grounds.12 First, the Federal Circuit opined that the Army Corps operating the MR-GO without controlling erosion was government “inaction” that could not give rise to a taking.13 Second, the court held that plaintiffs failed to prove that government action caused the flooding of their properties because they did not consider the flood-reducing effects of other components of the government project.14
This Note is concerned with the implications of the Federal Circuit’s conception of government action and inaction. This Note argues that the Federal Circuit inappropriately and unnecessarily categorized the Army Corps operating the MR-GO without erosion controls as government inaction that could not constitute a taking.15 This artificial distinction of action versus inaction ignored existing caselaw and could create uncertainty for future cases.16 With the likelihood of success on a tort theory already slim,17 the Federal Circuit’s decision could leave similarly situated plaintiffs entirely without a remedy should future courts seize upon the action-inaction distinction as articulated in this case.18
As global climate change will increasingly bring more frequent and severe storms,19 while population growth continues in flood-prone areas,20 it is likely that more instances of government projects causing or exacerbating flooding will occur.21 This Note describes the legal framework future plaintiffs affected by such flooding will need to navigate, examined through the lens of St. Bernard Parish Government v. United States.
Part I summarizes the facts of the case and procedural history, including the tort claims in the Eastern District of Louisiana,22 as well as the appeal to the Fifth Circuit Court of Appeals,23 and the inverse condemnation claim in the Court of Federal Claims.24 Part II summarizes the Federal Circuit’s holding, which reversed the Claims Court’s decision.25 Part III discusses the background law on taking of private property by government-induced flooding and how courts traditionally distinguished between a tort and a taking. This Part also explains the importance of determining whether a case can be heard as a taking, rather than as a tort, given obstacles to recovery on a tort theory. Part IV critically analyzes the Federal Circuit’s holding and reasoning and summarizes how future flood takings plaintiffs can work around the most problematic aspects of St. Bernard Parish to increase their likelihood of recovery.
I. Facts and Procedural History
A. Tort Claims
After Hurricane Katrina, over 400 plaintiffs in New Orleans and St. Bernard Parish filed individual tort actions to recover for hurricane-related damages, which were consolidated into groups by the United States District Court for the Eastern District of Louisiana.26 Most relevant to this Note are the “Robinson” plaintiffs, who alleged that the Army Corps’ operation and maintenance of the MR-GO caused damage to their properties during Hurricane Katrina for which they were entitled to recovery under the Federal Tort Claims Act (FTCA).27 The district court held that negligent operation and maintenance of the MR-GO caused the flooding that breached protective levees and ultimately flooded the Robinson plaintiffs’ properties.28 The district court also held that Section 702c of the Flood Control Act, which retains the United States’ sovereign immunity for flooding related to flood control projects,29 did not immunize the Army Corps from liability for damage caused by the MR-GO navigation channel.30 Finally, the district court determined that the Army Corps was not immune from suit under exceptions to the FTCA.31
On appeal, the United States Court of Appeals for the Fifth Circuit first partially affirmed the district court’s decision regarding the Robinson plaintiffs and found that the Army Corps was liable under the FTCA for failure to control the expansion of the MR-GO.32 Despite this initial success, on a rehearing, the Fifth Circuit found that the Discretionary Function Exception to the FTCA “completely insulates the government from liability.”33 With their tort claim defeated, plaintiffs needed another theory to seek compensation for their harm.
B. Inverse Condemnation Claim
After ultimately failing in their action under the FTCA, the property owners turned to takings law.34 The plaintiffs argued in an inverse condemnation claim that the construction, operation, and lack of maintenance or modification of the MR-GO channel by the Army Corps caused flooding on their land that was more severe than if the MR-GO had not been constructed, had been properly maintained, or had been modified prior to the hurricane.35 The plaintiffs alleged that the Army Corps took their property for a public purpose without providing just compensation by constructing and operating the MR-GO in this manner.36 The Claims Court agreed, providing an extremely detailed breakdown of what the Army Corps did and failed to do, how long the Army Corps knew about the flood risk, and how the MR-GO contributed to the flooding.37 The Claims Court found that the Army Corps’ construction, expansion, operation, and failure to maintain the MR-GO created a “funnel effect” directing water towards plaintiffs’ properties and increasing the elevation of storm surge, which caused flooding that amounted to a temporary taking of private property without just compensation.38 In what would become a major point of contention on appeal, the Claims Court partially attributed plaintiffs’ flooding to a failure to maintain the banks of the MR-GO to their design specifications,39 as well as a failure to modify the MR-GO to address storm surge concerns.40
The government appealed to the United States Court of Appeals for the Federal Circuit.41 The Federal Circuit reversed, articulating two points of disagreement with the Claims Court.42 First, the court determined that lack of maintenance of the channel was government inaction that could not give rise to a taking.43 Second, the court found that plaintiffs failed to consider all government actions in their causation analysis.44 The plaintiffs appealed to the United States Supreme Court, which denied plaintiffs’ petition for a writ of certiorari.45
II. The Federal Circuit’s Holding
On appeal, the Federal Circuit offered two grounds for reversing the Court of Federal Claims.46 First, the Federal Circuit determined that the Court of Federal Claims’ finding of takings liability was based largely on failure of the government to take action.47 In the Federal Circuit’s view, the government’s decision not to armor the banks of the MR-GO, which allowed the channel to expand and increased wave action on levees, was pure inaction that could not give rise to a taking.48 The Federal Circuit determined that flooding caused by a lack of maintenance could not be considered when determining whether the government was obligated to compensate plaintiffs for taking their property because the government is not obligated to compensate plaintiffs for a taking of property caused by government inaction.49 The Federal Circuit stated that only effects from the construction and operation of the MR-GO could form the basis of a takings claim.50
Second, the court determined that the plaintiffs did not properly consider the construction of flood-protective projects in their causation analysis and so declined to determine whether the “sole affirmative acts”—the construction and continued operation of the MR-GO—were foreseeable causes of the flooding of plaintiffs’ properties.51 Essentially, the plaintiffs failed to prove that their property would not have flooded during Hurricane Katrina in the absence of any government actions.52 To prove causation, plaintiffs should have considered all government actions directed to the risk that plaintiffs suffered (i.e., flooding).53 Because the nearby Lake Pontchartrain and Vicinity Hurricane Protection Project (LPV) levee system was constructed to mitigate flood risk, the Federal Circuit held that its effects should have been considered, along with the effects of the construction and operation of the MR-GO, to determine whether the totality of the government’s actions caused the plaintiffs’ flooding.54 The Federal Circuit did not disrupt any of the Court of Federal Claims’ findings of fact,55 nor did it find the case barred by the statute of limitations.56
III. Background and Discussion of Prior Law
Prior law indicates that government actions that cause even temporary flooding of private property can violate the Fifth Amendment prohibition on taking of private property without just compensation.57 Nonetheless, courts must answer the threshold question of whether a landowner’s claim for government invasion of its property can be heard as a taking claim, or must be heard as a tort claim.58 Because a number of exceptions to the FTCA allow the government to escape tort liability, whether a claim is a tort or a taking can decide whether a landowner will recover.59
A. Taking of Private Property by Flooding
The Fifth Amendment to the United States Constitution provides that the government cannot take private property for public use without providing “just compensation” to the landowner.60 A landowner alleging a taking without just compensation can bring an inverse condemnation claim against the government authority.61
Government-induced flooding of private property, whether permanent or temporary, can be grounds for an inverse condemnation claim to recover compensation for the government’s taking of private property.62 To establish a taking, a plaintiff must: (1) “show that he or she has ‘a property interest for purposes of the Fifth Amendment’” and (2) “establish that the government’s actions ‘amounted to a compensable taking of that property interest.’”63 In Arkansas Game & Fish Commission v. United States, the Supreme Court of the United States clarified that even temporary flooding caused by government action may be compensable through an inverse condemnation claim.64 In deciding whether government action that causes temporary flooding amounts to a taking, courts consider “(1) time—the duration of the physical invasion; (2) causation; (3) intent or foreseeability . . . ; (4) ‘the owner’s reasonable investment-backed expectations . . . ; and (5) the ‘[s]everity of the interference.’”65 The Arkansas Game Court cautioned against applying bright-line rules (such as requiring multiple flooding events) to takings analyses while reversing the Federal Circuit’s determination that a single flooding event could never give rise to a taking.66
The causation and foreseeability elements are most relevant to the analysis of the St. Bernard Parish case. To prove causation, a plaintiff must show that the invasion of their property would not have occurred absent government action. For example, in a case where plaintiffs alleged a taking where a government-constructed dike deposited sand and gravel on their land that increased flooding, the court determined that plaintiffs should have presented evidence of “what would have occurred if the dike had not been constructed” to prove that their land would not have flooded in the absence of government action.67 Another plaintiff failed to prove that a canal constructed by the government caused increased flooding on his land where the land was subject to similar flooding before the canal was built and any increase in flooding was “purely conjectural.”68
If one government action reduced the risk of flooding in ways that compensated for any increased risk from another government action, courts have held that the government did not cause the flooding and therefore did not take the property in question.69 In addition, all components of a government action (including those that increase flood risk and those that decrease flood risk) must be analyzed to determine if the flooding was caused by the government action, or would have occurred regardless of whether the government acted.70 For example, in John B. Hardwicke Co. v. United States, plaintiffs were not entitled to compensation for flooding caused by a water diversion from one dam where the flood-protective effects of a simultaneously built dam made their property usable for farming in the first place.71 The court in Hardwicke noted that plaintiffs had never experienced the benefits of the first dam before the second dam was constructed.72 Finally, in Arkansas Game, where plaintiffs alleged that a diversion from the water release plan for an Army Corps dam caused increased flooding to their Wildlife Management Area, the proper comparison for causation purposes was the flood risk prior to the construction of the dam compared to the flood risk caused by the diversion from the water release plan, rather than the flood risk of the normal water release plan compared to the flood risk of the diversion from the water release plan.73
The foreseeability element requires that the invasion is “‘the foreseeable or predictable result’ of the government’s action.”74 It is not necessary that the government actually foreseethe invasion of plaintiffs’ property, but just that the government “could have foreseen” the invasion.75 If an analysis or investigation would have revealed that an invasion onto private property would occur as a result of government action, the foreseeability element is met, even if the government did not in fact conduct any analyses or investigation into the risk.76
B. Tort or Taking?
While the same facts may give rise to both a takings claim and a tort claim,77 the Claims Court must also decide that an inverse condemnation claim is appropriate before it can decide whether a taking has in fact occurred. This determination is ultimately a jurisdictional question.78 The Tucker Act gives the Claims Court jurisdiction to “render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for . . . damages in cases not sounding in tort.”79 In contrast, the FTCA provides that the district courts have exclusive jurisdiction over tort claims against the United States arising out of acts or omissions by government employees acting within the scope of their employment.80 Beyond deciding the forum, the tort/taking distinction can be determinative of whether plaintiffs will be compensated for government invasion of their land because there are exceptions to the FTCA that do not apply to takings claims.81
The Federal Circuit articulated a test for deciding this threshold tort-or-taking question for government-caused flooding in Ridge Line, Inc. v. United States, where plaintiffs sought compensation for flooding on their property caused by increased stormwater runoff from construction of a new United States Postal Service building.82 First, the government must intend to invade the property, or the invasion must be the “direct, natural, or probable result” of an authorized government activity; and second, the government action must be of a nature and magnitude to rise to the level of a taking.83
In order for the invasion of property to be considered the “direct, probable, or natural result” of a government action, the invasion must have been the foreseeable or predictable result of the government action.84 It is not enough for the government action to be the but-for cause of the invasion.85 For example, in Moden v. United States, plaintiffs sought compensation for contamination of their groundwater with the chemical trichloroethylene (TCE) after the Air Force used TCE through the 1940s and 50s at a nearby Air Force base.86 While the Modens may have proved that the Air Force’s activities were the cause-in-fact of their groundwater contamination, they did not prevail because they did not prove that the Air Force should have foreseen that TCE would be released into the groundwater.87 In contrast, in a case cited favorably in Ridge Line88Ridge Line, 346 F.3d at 1356–57. and Moden,89 the government was required to compensate landowners for property taken by flooding where a dam caused a lake to fill with sediment, which over time raised the water level and flooded plaintiffs’ property.90 Because the government could have foreseen the flooding caused by the dam, and it resulted naturally from the construction of the dam, the court found that an inverse condemnation claim was appropriate, and the government was required to compensate the landowners.91
The second prong of the Ridge Line test requires that flooding rises to the level of a taking.92 Flooding that only reduces the value of a property is insufficient to constitute a taking; rather, flooding must either provide a benefit to the government at the expense of the property owner, or at the very least prevent the property owner from using their property for some time.93 In Ridge Line, the Federal Circuit determined that flooding caused by construction of a postal facility could constitute the taking of a flowage easement for government use over plaintiffs’ property, and so rose to the level of a taking.94
C. Significance of the Tort/Taking Distinction
The distinction between tort claims and takings claims articulated in Ridge Line is of particular importance to the St. Bernard Parish plaintiffs and future similarly situated plaintiffs because the FTCA has a number of exceptions that make recovery on a tort theory difficult.95 The most problematic of these exceptions is the Discretionary Function Exception, which immunizes government agencies and employees from tort actions arising out of the performance or failure to perform a discretionary function or duty.96 For this exception to apply, there must be “room for choice” in the government agency or employee’s decision as authorized by statute, and the choice must be based on public policy considerations.97 The Supreme Court articulated a two-prong standard for applying the Discretionary Function Exception in Berkovitz v. United States,98 which the Fifth Circuit applied in the Hurricane Katrina litigation.99 In order to be covered by the Discretionary Function Exception, the act that allegedly caused the plaintiff’s harm must have been a “matter of choice” for the government employee.100 An employee or agency acting in violation of a statutory mandate is therefore not shielded by the exception.101 Second, the action or decision must be of the nature that the exception is designed to protect—that is, an action based on policy considerations, since the Discretionary Function Exception was designed to prevent “judicial second-guessing” of policy decisions through tort law.102 The Supreme Court in United States v. Gaubert clarified that the court must consider the nature of the actions taken, and whether an action is “susceptible to policy analysis,” regardless of whether the government actually performed such an analysis.103
In the tort claim preceding St. Bernard Parish, the Army Corps claimed the decision to forgo erosion control and to not warn Congress of the need for such measures was a policy decision protected under this exception.104 Further, the Army Corps argued that because erosion mitigation measures would require additional congressional authorization and funding, the Army Corps could not be liable in tort for failure to implement such measures.105 The District Court for the Eastern District of Louisiana disagreed, finding that poor engineering decisions and ignorance of safety concerns were not policy decisions.106 The district court further found that the Discretionary Function Exception was inapplicable because the Army Corps violated a mandate of the National Environmental Policy Act (NEPA) by preparing a flawed Final Environmental Impact Statement, failing to prepare a Supplementary Environmental Impact Statement when new information on the impacts of the MR-GO was available, and deliberately segmenting its environmental reporting to keep the public and other agencies uninformed of the serious effects of the MR-GO on the environment and public safety.107
The Fifth Circuit disagreed with the district court regarding the Army Corps’ decisions under NEPA,108 but initially agreed that the decision not to armor the MR-GO was based on the erroneous scientific judgment that allowing the channel to expand would not increase storm surge rather than on any policy consideration, and thus was not covered by the Discretionary Function Exception.109 However, on rehearing, the Federal Circuit held that the decision to delay shore protection measures for the MR-GO, while informed by scientific analysis, was “susceptible to policy considerations,” and therefore within the protection of the Discretionary Function Exception.110 The Fifth Circuit declared that the Discretionary Function Exception to the FTCA “completely insulate[d] the government from liability.”111
Some scholars have criticized the Katrina Canal Breaches interpretation of the Discretionary Function Exception as excessively broad.112 Judge Duval of the United States District Court for the Eastern District of Louisiana, who authored the opinion finding the Army Corps liable to the Robinson plaintiffs under the FTCA,113 and his permanent clerk Janet Louise Daley, argue that the Fifth Circuit panel rehearing the case misunderstood the facts and improperly failed to consider the “nature of the action” in determining that the Army Corps failing to contain the MR-GO to its designed width was protected by the Discretionary Function Exception.114 Others have critiqued the rehearing panel’s conclusory determination that the Army Corps’ actions and decisions concerning the MR-GO were “susceptible to policy analysis” without specifying what that policy analysis might entail, when the prior Fifth Circuit panel extensively supported its decision that the Army Corps’ actions were based on misapprehension of scientific analyses.115 Despite these criticisms, the Discretionary Function Exception, and its application in the Katrina litigation, continue to pose a significant obstacle for plaintiffs attempting to recover damages from the government for flooding under a tort theory.116
IV. Analysis of the Federal Circuit’s Decision in St. Bernard Parish
These prior cases establish the test for determining whether the government’s invasion of private property through flooding should be heard as a taking or a tort.117 The significance of that distinction cannot be understated for the St. Bernard Parish plaintiffs, who failed to recover in their tort claim under the Fifth Circuit’s interpretation of the Discretionary Function Exception to the FTCA.118 Nonetheless, in finding for the Army Corps, the Federal Circuit unnecessarily decided that the Army Corps’ operation of the MR-GO without erosion control was really “inaction” that could only be remedied by tort law.119 The Federal Circuit’s determination of “inaction” was unnecessary to decide the case and contrary to prior law.120 If the action-inaction opinion in St. Bernard Parish is not treated as dicta by future courts, it could have dire consequences for future plaintiffs attempting to recover for government-induced flooding of their property.121
A. The Federal Circuit’s Action-Inaction Determination Is Dicta
In trying to correct what it regarded as an overbroad characterization of takings law by the Court of Federal Claims, the Federal Circuit unnecessarily injected uncertainty and confusion into the taking-or-tort analysis. Because its decision turned on plaintiffs’ burden of proof to prove causation, the Federal Circuit did not need to define the Army Corps’ operation of the MR-GO to expand via erosion as “action” or “inaction” to find that the United States was not required to compensate plaintiffs. The Federal Circuit’s decision rested on the plaintiffs’ failure to demonstrate that they would not have experienced flooding if there was no government action at all (including both the MR-GO and protective levees).122 The Federal Circuit could also have emphasized the unexpected strength and severity of Hurricane Katrina, which could have possibly flooded plaintiffs’ property regardless of the impact of the MR-GO.123
Instead, the Federal Circuit chose to separate the decision to operate the MR-GO without erosion controls from the construction and operation of the MR-GO in general, proclaiming the Army Corps’ operation of the MR-GO without controlling erosion “government inaction” that is not compensable in an inverse condemnation claim.124 It is not clear how the Federal Circuit would have distinguished flood risk attributable to the operation of the MR-GO from flood risk attributable to “lack of maintenance”; the MR-GO was operated consistently without erosion controls.125 It is unclear if the Federal Circuit would require plaintiffs to enlist experts to model or speculate about flood risk posed by the MR-GO if the channel had remained within its original configuration to make this demonstration. The Federal Circuit avoids this counterintuitive analysis by refusing to reach the question of whether plaintiffs’ flooding was the foreseeable result of the construction and operation of the MR-GO, and instead dismissing the case based on plaintiffs’ failure to consider the flood-protective effects of the LPV levees in their causation argument.126 Because the action-inaction distinction was not required to decide the case, it should be treated as dicta.
B. Operating the MR-GO While Allowing Erosion Is Not Inaction
The determination that operating the MR-GO without erosion control is a separate instance of government inaction that cannot be included in a takings analysis was not only unnecessary to dismiss the claim but also contrary to prior law.127 Construction and operation without controlling for erosion is not fairly characterized as “inaction.”128 Choosing to forgo erosion control is not a severable component of the government’s construction and operation of the MR-GO; as the record shows, the Army Corps purposefully allowed the MR-GO to widen through erosion, despite knowing the increase in flood risk inherent in operating the channel in this manner.129
The separation of the decision to forgo erosion control from the operation of the MR-GO to remove flooding caused by the “lack of maintenance” of the banks from the takings analysis is contrary to prior caselaw. Before St. Bernard Parish, there were numerous successful inverse condemnation cases that, in hindsight, could be characterized as a “failure to modify” or “failure to maintain” a government project to guard against a foreseeable risk. For example, in Hansen v. United States, plaintiffs succeeded in defeating the government’s motion for summary judgment in an inverse condemnation claim against the United States for contamination of groundwater on their property.130 The contamination was caused by the government using and burying containers of pesticide.131 The containers leaked and entered the groundwater on the government’s property, which then reached plaintiffs’ property.132 The case could have been argued as “inaction” if the facts were framed as the government’s failure to maintain underground containers holding pesticide or failure to monitor spread of contamination, rather than burying the containers in the first place.133 The Hansen case seems like a stronger argument for inaction than the argument in St. Bernard Parish, since the government in Hansen could not see the containers leaking pesticide, while the Army Corps in St. Bernard Parish was aware of the expansion of MR-GO and the accompanying risks for some time.134 Nonetheless, the Hansen court found that contamination of plaintiff’s groundwater was the “direct, natural, or probable result” of the government burying containers of pesticide, even though the government did not purposefully release the pesticide and the containers were not leaking when originally buried.135
As another example, in a case pre-dating Ridge Line, the government was required to compensate landowners for property taken by flooding when a dam caused a lake to fill with sediment, thereafter causing plaintiffs’ property to flood.136 Under an action-inaction dichotomy, flooding caused by subsequent sedimentation of the lake could be attributed to a lack of maintenance or the failure to employ sediment controls, rather than considered part of the effects of constructing and operating the dam, but the court did not so decide.137 In deciding whether the flooding had the requisite foreseeability to be actionable as a taking, the court determined that had engineers studied the question, they likely would have concluded that sedimentation and subsequent flooding would occur, and it was not necessary for the government to have actually studied or been aware of the risk.138 St. Bernard Parish is an even stronger case for finding a taking, since the Army Corps was actually aware for decades that constructing the MR-GO and operating it without erosion controls would cause flooding of plaintiffs’ property during storm events.139
Finally, in a post-Ridge Line case, the collapse of a mine portal caused by the Environmental Protection Agency’s removal of a 100-foot timber wall supporting the landing of a mine portal and allowing the fill material of the landing to settle could be compensable as a taking.140 The court did not treat allowing the fill material of the landing to settle as severable government inaction, but rather held that there were unresolved questions of fact to determine whether the collapse of the portal was the direct, probable, or natural result of the agency’s actions.141 Similarly, the Army Corps replenishing beaches on Coney Island, which caused sand to accumulate on downdrift properties, was a taking of private property because the sand accretion was the direct, natural, or probable result of beach replenishment and rose to the level of a taking.142 Allowing sand accretion downdrift was not treated as a severable instance of inaction or failure to employ sediment controls.143
Further, the cases relied on by the Federal Circuit are distinguishable from the facts in St. Bernard Parish. The cases relied on found that a taking does not occur where the government has not taken any affirmative action, such as constructing a project or adopting a regulation,144 nor does a taking occur where a government flood protection project is only insufficiently protective, rather than actually increasing flooding.145 These situations are distinct from the operation of the MR-GO by the Army Corps in a way that allowed unabated erosion to widen the channel because they involved a wholesale lack of affirmative action by the government, in contrast to the affirmative action of operating the MR-GO.
For example, in United States v. Sponenbarger, the Supreme Court held that the government constructing a flood protection project that failed to protect the plaintiff was not a taking under the Fifth Amendment.146 While the Federal Circuit points to this case in St. Bernard Parish to support the claim that government inaction cannot give rise to a taking, this case does not support finding that construction and operation without proper maintenance of the MR-GO is itself government inaction. Constructing a project which, as operated by the government, causes flooding is not analogous to constructing an insufficiently protective flood control project that merely fails to protect particular plaintiffs from flooding. Exposing plaintiffs to additional flood risk that would not exist in the absence of government action is clearly distinguishable from constructing a project that keeps the flood risk to particular properties the same as before the project was constructed. The Fifth Amendment does not impose any affirmative obligation to protect property, as the Sponenbarger plaintiffs tried to allege, but it does establish the right to be free from uncompensated taking of one’s property by the government, as alleged by the St. Bernard Parish plaintiffs.147
In Georgia Power Co. v. United States, another case relied on by the Federal Circuit in St. Bernard Parish, plaintiffs held a powerline easement twenty-five feet above a reservoir.148 Masts of sailboats in the reservoir were tall enough to invade this easement.149 Plaintiffs argued that the government had an affirmative obligation to regulate the mast height of sailboats allowed in the reservoir to keep them from interfering with their powerline easement, and that allowing sailboats with too-tall masts to navigate the reservoir was a taking of their property.150 The court held that failure to regulate sailboat heights was not a taking.151 While this case supports the contention that inaction, and particularly failure to regulate, cannot give rise to a taking, the construction and operation of the MR-GO is not at all analogous to a wholesale failure to regulate conduct because it required multiple affirmative actions by the government.152 Again, while the Fifth Amendment does not create an affirmative obligation to protect property, it does create the right to be free from uncompensated government invasion of private property.153
C. Severing the Decision to Forgo Erosion Control from the Operation of the MR-GO Contradicts the Federal Circuit’s Causation Analysis
Separating the decision to allow expansion via erosion from the operation of the MR-GO as a whole not only contradicts prior law but also the Federal Circuit’s own reasoning. The court extensively describes how the plaintiffs’ failure to consider the flood-protective effects of the LPV levees in their causation analysis was fatal to their claim because they failed to “consider the impact of the entirety of government actions that address the relevant risk.”154 This holding is in line with prior law,155 and undermines the court’s disregard of the impact of expansion of the MR-GO through erosion on the plaintiffs’ flooding. The court chides plaintiffs for “cherry-picking” only government actions that increased their flood risk,156 but similarly cherry-picks one aspect of the Army Corps’ operation of the MR-GO (keeping the channel open to ship traffic) while ignoring the expansion-by-erosion that was also an integral component of the Army Corps’ operation of the channel.157
Deciding that the operation of the MR-GO can somehow be analyzed without considering the effects of the decision not to incorporate erosion control seems even less appropriate than considering the flood-increasing impact of one dam, but not the flood-protective impact of another simultaneously-constructed dam,158 or considering flooding from deviations from a water release plan without considering the flood-protective impacts of the initial construction of the dam.159 While the Federal Circuit refuses to allow plaintiffs to separate the impacts of separate but related government actions in determining causation, it somehow expects plaintiffs to analyze a hypothetical reality where the MR-GO had not expanded. The MR-GO and the LPV levees are too related to be considered in isolation,160 but two aspects of operating a single navigation channel are somehow expected to be severed in determining whether a taking has occurred.161 In addition to being analytically difficult and artificial, it also runs counter to decades of caselaw requiring plaintiffs to “consider the impact of the entirety of government actions that address the relevant risk.”162
D. Implications for Future Cases
The Federal Circuit’s mischaracterization of operating the MR-GO without erosion control as non-compensable inaction unfortunately confuses the analysis for future takings claims.163 If taken too far, this dicta could severely limit the ability of future plaintiffs to recover, especially because recovery in tort is exceedingly difficult.164 For example, in a case brought by property owners upstream of dams constructed by the Army Corps whose properties flooded during Hurricane Harvey in August 2017, the government unsuccessfully tried to characterize the case as one of inaction.165 The government’s theory of the case was that the flooding was caused by the Army Corps’ failure to purchase land upstream of the dam or modify the dam to prevent flooding upstream, rather than by the government action of constructing and operating the dam in the first place.166 The Court of Federal Claims rejected that argument,167 but under St. Bernard Parish, the Federal Circuit might find it persuasive. The Court of Federal Claims implicitly distinguished Upstream Addicks from St. Bernard Parish by focusing on the affirmative action of building and modifying the dam such that it could impound water on both government-owned and private property,168 and focused on the causation analysis of St. Bernard Parish rather than the action-inaction analysis.169
In Upstream Addicks, there is strong evidence that the Army Corps knew that a storm of the magnitude of Hurricane Harvey could cause upstream flooding of plaintiffs’ property,170 just as the Army Corps knew that unabated erosion of the MR-GO could cause flooding of plaintiffs’ properties.171 Flooding of the plaintiffs’ property was the “direct, natural, and probable” result of the construction and operation of the dams in this way. However, under St. Bernard Parish, the court could have treated construction in 1945 and 1948 as the sole actions, and failure to modify the dam or acquire upstream land through eminent domain as more intense storms were predicted as severable instances of inaction. In light of St. Bernard Parish, the court in Upstream Addicks could have determined that flooding would not have occurred when the dams were built, and flooding experienced by plaintiffs was not a taking because it was attributable to subsequent failure to modify the dam or acquire property.172 While this conclusion is contrary to pre-St. Bernard Parish cases, St. Bernard Parish opened the door to such a result.173
Future courts deciding whether the government has taken property without just compensation by flooding private property should not supplant the Ridge Line test with an artificial action-inaction distinction. Courts should not discount flooding attributable to operation of a project in a way that increases flood risk and fails to abate that risk as caused by inaction if the government knew or could have known that flooding would be the direct, natural, or probable result of operating the project in that manner.
Plaintiffs seeking compensation for flooding caused or exacerbated by government projects must therefore deemphasize the force of the Federal Circuit’s action-versus-inaction analysis in St. Bernard Parish. Future plaintiffs should characterize the distinction between the action of operating the MR-GO from the inaction of forgoing erosion controls as dicta to correct a potentially overbroad statement of the reach of the Takings Clause, and not as a new test for distinguishing torts from takings.174 Courts should recognize that the Federal Circuit’s decision was based mostly on plaintiffs not meeting their burden of proof regarding causation by failing to consider the entire scope of government action affecting flood risk, and that it was unnecessary to decide that operation without addressing erosion was inaction because plaintiffs would not have prevailed regardless.175
Future courts could also interpret the Federal Circuit’s determination that operating the MR-GO without erosion controls is inaction as simply shorthand for the flooding not being a direct, natural, or probable result of the construction and operation of the MR-GO and continue to apply the Ridge Line test, rather than picking apart many facets of government actions to designate some true action and some inaction. This is what the Claims Court seems to have done in a recent case where flooding was caused by a buildup of sediment from a flood control structure on the Mississippi River.176 Doing otherwise could leave injured property owners entirely without compensation where the government causes their property to be flooded.
Conclusion
As climate change raises the frequency of large storm events with increasingly intense rainfall,177 and population density continues to increase in flood-prone areas,178 many more landowners will be impacted by flooding. Recent projections predict significant increases in both coastal and inland flood risk. One study estimates that as many as 300 million people globally will be at severe coastal flood risk from sea level rise by 2050, with that number swelling to 480 million by 2100.179 Another study estimates inland flood damage driven by climate change will cause up to seven billion dollars in damage within the contiguous United States alone by 2100, with the greatest exacerbation of flooding occurring in the Southeast, Northeast, and Midwest.180 More precipitation and flooding leaves more chances for government projects to cause or exacerbate flooding of particular properties that would otherwise not have been flooded.
Takings law, as it stands, is not a viable mechanism for mitigating climate change impacts.181 However, where property is flooded, and that flooding is caused or exacerbated by the misguided government decisions of the past, property owners will still attempt to seek compensation from the government for the loss of their property. Under recent expansive interpretation of the Discretionary Function Exception in the FTCA, plaintiffs like those in St. Bernard Parish and Upstream Addicks are unlikely to be able to prevail on a tort claim.182 Under St. Bernard Parish, the ability of similar plaintiffs to recover in an inverse condemnation claim could now be severely limited.183 Of course, this may be exactly the result the Federal Circuit sought to achieve.
While holding the government liable for takings for flooding caused by a total lack of action is not appropriate, allowing the government to sidestep takings liability by contorting the facts into a case of inaction where it had previously affirmatively acted could leave a population of climate refugees who are victims of their own government.184 As seen in the Hurricane Harvey dam litigation, there can be plausible arguments on either side that a particular component of what caused the flooding should be treated as action or inaction.185 Rather than reducing the conversation to clever wordsmithing by lawyers, where there is some affirmative act by the government, the Ridge Line test should govern whether flooding attributable to subsequent operational decisions is compensable as a tort or a taking.186
Future courts should treat the action-inaction discussion in St. Bernard Parish as dicta or shorthand for the flooding not being a direct, natural, or probable result of the construction and operation of the MR-GO and continue to apply the Ridge Line test.187 While there is some evidence that the causation holding of St. Bernard Parish will have the most impact over future cases,188 future plaintiffs must be aware of the potential impact of the action-inaction distinction and be prepared to employ arguments to diminish its sway over the result of their case if they hope to be compensated for government-caused flooding of their property.