[00:00:01] Speaker 00:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:00:06] Speaker 00:
God save the United States and this honorable court.

[00:00:11] Speaker 04:
We'll hear argument this morning in number 2019-1678, Alfred versus United States, Mr. Arbabb.

[00:00:26] Speaker 05:
May I please the court?

[00:00:27] Speaker 05:
This is John Arbabb for the United States.

[00:00:30] Speaker 05:
The Court of Federal Claims held the United States liable for a temporary physical taking of plaintiff's properties by flooding and awarded plaintiff's compensation, where plaintiffs in fact greatly benefited from actions of the Army Corps of Engineers.

[00:00:46] Speaker 05:
To award plaintiff's compensation in these circumstances amounts to a windfall.

[00:00:52] Speaker 05:
The CFC's judgment should be reversed for any of four independent reasons.

[00:00:58] Speaker 05:
First, at trial,

[00:01:00] Speaker 05:
plaintiffs did not even attempt to carry their burden of proving causation as required by St.

[00:01:06] Speaker 05:
Bernard Parish, a decision ignored by the CFC.

[00:01:11] Speaker 05:
As in St.

[00:01:11] Speaker 05:
Bernard Parish, the court here can and should reverse on this ground alone and need not reach the government's other grounds for reversal.

[00:01:22] Speaker 05:
Number two,

[00:01:23] Speaker 05:
If the court reaches the issue, the court is not liable for a taking of plaintiff's properties under the relative benefits doctrine.

[00:01:32] Speaker 05:
Number three, were the court to reach this issue, the doctrine of necessity precludes liability for a taking of plaintiff's properties.

[00:01:41] Speaker 05:
Fourth and lastly, if the court were to reach this issue, under the multi-factor analysis required by the Supreme Court's decision in Arkansas game,

[00:01:52] Speaker 05:
which the CFC ignored, the Corps' temporary flooding of plaintiff's properties did not amount to a taking.

[00:02:00] Speaker 05:
Now first, regarding causation, the CFC erroneously ignored St.

[00:02:05] Speaker 05:
Bernard Parish.

[00:02:07] Speaker 01:
Under that precedent, plaintiffs were required... Council, could you explain to me why you think intentionality is completely irrelevant in this context?

[00:02:17] Speaker 01:
I mean, isn't it easier to know what caused something when it was done intentionally rather than when it was done unintentionally?

[00:02:27] Speaker 05:
Your Honor, I believe that intentionality is irrelevant to the causation analysis.

[00:02:32] Speaker 05:
It is part of the Arkansas game analysis if the court were to reach that issue, whether the temporary flooding here amounted to a taking.

[00:02:42] Speaker 05:
But in terms of causation,

[00:02:45] Speaker 05:
Intentionality is not a relevant consideration.

[00:02:50] Speaker 05:
What is relevant is that the plaintiffs had to present evidence comparing the damage to their properties that actually occurred in 2011 when the Corps raised the level of Eagle Lake to 90 feet with the damage that would have occurred if there had been no government action at all.

[00:03:10] Speaker 05:
That is, if the Corps had not built the segment of the levee,

[00:03:15] Speaker 01:
So is it your position that there is absolutely no way the plaintiffs in this case could have ever proven causation?

[00:03:26] Speaker 05:
I think the most relevant consideration is that they did not even attempt to prove causation.

[00:03:32] Speaker 01:
And even though it wasn't the government... How about a hypothetical question?

[00:03:37] Speaker 01:
Could there be any way for them to prove causation under your theory?

[00:03:46] Speaker 05:
Your Honor, the plaintiffs would need to make the comparison that I've just described and then to show that the damage that actually occurred was greater than the damage that would have occurred if the government had taken no action at all.

[00:04:05] Speaker 05:
So that would be a hypothetical case where the plaintiffs could prove causation of trial.

[00:04:11] Speaker 01:
But on these facts, do you think there's any way that could have been done?

[00:04:16] Speaker 05:
On the facts of this case, Your Honor?

[00:04:18] Speaker 05:
Yes.

[00:04:21] Speaker 05:
No.

[00:04:22] Speaker 05:
And actually, the government did not bear the burden of disproving causation, but the government at trial.

[00:04:30] Speaker 01:
That's not my question.

[00:04:31] Speaker 01:
I'm just trying to find out, under your legal theory on these facts, is it your position that they could never prove causation?

[00:04:39] Speaker 01:
Not just that they didn't offer enough evidence, but that there's no way they could prove it on these facts.

[00:04:48] Speaker 05:
Your Honor, yes, on the facts of this case, there was no causation.

[00:04:51] Speaker 05:
And the government didn't need to disprove causation, but the government did put in evidence applying the St.

[00:04:58] Speaker 05:
Bernard Parish causation principles.

[00:05:00] Speaker 05:
And the government's undisputed trial evidence showed that if the Corps had not built the levee near Eagle Lake, the water level in Eagle Lake would have reached 107.5 feet in 2011, or 17 and a half feet higher

[00:05:15] Speaker 05:
than the 90-foot level that actually occurred when the Corps raised the level of Eagle Lake.

[00:05:22] Speaker 05:
The parties also stipulated at trial that the plaintiff's cost of repairs, which was the only damages they sought, would have been significantly higher if the levy had breached in 2011.

[00:05:34] Speaker 05:
That is, if in effect the Corps had not built the levy.

[00:05:38] Speaker 05:
For example,

[00:05:39] Speaker 05:
regarding the altered property.

[00:05:41] Speaker 01:
Doesn't that argument go more toward the relative benefit?

[00:05:46] Speaker 01:
In other words, your argument is that there was going to be an inevitable flood that would have done more damage, right?

[00:05:55] Speaker 05:
Yes, if the levee had breached, if the core had not acted.

[00:05:59] Speaker 01:
So that the anticipation was an inevitable natural flooding that would have done more damage.

[00:06:06] Speaker 01:
And is that not a different

[00:06:09] Speaker 01:
flooding than this intentional act to prevent that flooding?

[00:06:17] Speaker 01:
I mean, I see your arguments going more toward your other theories, like your theory of necessity or your theory of relative harm.

[00:06:26] Speaker 05:
Well, Your Honor, under the theory of relative benefits, under the Spohn and Barger doctrine, the Supreme Court decision, I think the

[00:06:38] Speaker 05:
The evidence or the temporal focus would be somewhat different, at least as I can conceive or as the government can conceive the causation question.

[00:06:49] Speaker 05:
One looks at what would have happened in April of 2011 if the Corps had not acted at all.

[00:06:57] Speaker 05:
Under the Relative Benefits Doctrine, we view it as a broader analysis looking at what would have happened over a period of years.

[00:07:08] Speaker 05:
Mr. Arbath?

[00:07:10] Speaker 05:
Yes, your honor.

[00:07:12] Speaker 02:
Judge Scholl here.

[00:07:15] Speaker 02:
To pick up a little bit on the colloquy you were having with Judge O'Malley, why is causation really an issue here?

[00:07:23] Speaker 02:
I mean, it seems to me clear that the immediate cause, as you forthrightly acknowledge in your brief, of the damage to the piers and the docks at Eagle Lake

[00:07:38] Speaker 02:
was the raising of the level of the water in the lake.

[00:07:43] Speaker 02:
There's no question that that's what caused the damage here.

[00:07:47] Speaker 02:
And doesn't that make this case different from St.

[00:07:51] Speaker 02:
Bernard Parish, where the question of damage was open?

[00:07:55] Speaker 02:
There the question was, did the actions of the Corps of Engineers with respect to the Mergo and the VPG cause

[00:08:06] Speaker 02:
the damage that came from the flooding of Hurricane Katrina.

[00:08:10] Speaker 02:
So why is causation an issue here?

[00:08:14] Speaker 05:
Your Honor, it's an issue because under St.

[00:08:18] Speaker 05:
Bernard Parish, the relevant causation question is what would have happened if the Corps had not acted at all.

[00:08:28] Speaker 05:
And here, we believe that that requires looking at what would have happened if the Corps had not built

[00:08:36] Speaker 05:
the segment of the levee near Eagle Lake and have not built the muddy bayou control structure.

[00:08:43] Speaker 02:
But looking at it, isn't it really though, it seems to me, a question of the Corps caused the damage, but in doing so, the Corps prevented much further damage, a catastrophic breach of the levee.

[00:09:01] Speaker 02:
I mean, isn't your best argument

[00:09:04] Speaker 02:
look yes we caused the damage to the peers and the docs but the relative benefits doctrine applies because if we hadn't done that there would have been a breach of the levy as everyone agreed and there would have been much greater damage isn't that your best argument why get into all this discussion about what was built you know years before and all well your honor the the government would

[00:09:32] Speaker 05:
would be satisfied with a favorable decision that is premised on the relative benefits doctrine.

[00:09:39] Speaker 05:
As I was trying to get into with Judge O'Malley, I think the principle difference between the causation doctrine and relative benefits in our context here is that one would look at a broader temporal time period for the relative benefits analysis.

[00:09:58] Speaker 05:
In other words, over a period of time,

[00:10:02] Speaker 05:
including 2011, but not just talking of 2011, what benefits did the plaintiff's properties receive from the Corps' flood control structures in the area?

[00:10:13] Speaker 05:
And again, the evidence there was uncontested that plaintiff's properties have been benefited by the Corps preventing Eagle Lake from flooding the property in many years by having the levee there.

[00:10:28] Speaker 01:
Is that true across the board, or would there need to be a remand

[00:10:32] Speaker 01:
for purposes of determining relative benefit for each property?

[00:10:39] Speaker 05:
No, Your Honor, there would be no need for remand because, as you point out in the brief, the evidence is, the government's evidence, the trial was unrebutted.

[00:10:48] Speaker 04:
But we have an actual finding by the claims court, don't we, that they were better off than they would have been if the lake level hadn't been increased and the levee had been breached.

[00:11:01] Speaker 05:
Yes, Your Honor, that's certainly true for the events of April 2011.

[00:11:09] Speaker 05:
I see that I'm into my rebuttal time, so perhaps I should stop at this point.

[00:11:13] Speaker 04:
Okay, unless there are other questions, why don't you save your rebuttal time.

[00:11:17] Speaker 04:
We'll hear from Alston.

[00:11:24] Speaker 03:
May I proceed, Your Honor?

[00:11:26] Speaker 03:
Yes.

[00:11:27] Speaker 03:
I'm Sheldon Alston on behalf of the

[00:11:29] Speaker 04:
appellees and appreciate the conversation that just took place the causation question really isn't shouldn't be part of the equation the let me have and what what you make much of the of the idea that this was an intentional act by the government and you seek to distinguish various cases on that ground but isn't it true that every government program is intentional program

[00:11:59] Speaker 04:
The building of the levee in the first place was intentional.

[00:12:06] Speaker 04:
And in Sponnenberger, what was intentional was the overall government program.

[00:12:14] Speaker 04:
And if I understand the cases correctly, intentionality is always a given because the government can't be liable unless it takes an affirmative act.

[00:12:24] Speaker 04:
And the question becomes one of foreseeability.

[00:12:28] Speaker 04:
So I don't understand how you can say that this case is somehow unique because the government action is intentional.

[00:12:36] Speaker 03:
I appreciate that.

[00:12:37] Speaker 03:
And I'm not sure.

[00:12:39] Speaker 03:
I'm just saying that it doesn't fall into the St.

[00:12:41] Speaker 03:
Bernard Parish kind of

[00:12:43] Speaker 03:
equation that the government tries to push it into.

[00:12:46] Speaker 03:
Every taking, there has to be a public necessity.

[00:12:51] Speaker 03:
There has to also be a good that comes from every taking, right?

[00:12:54] Speaker 03:
And that's one place that it gets a little bit more difficult.

[00:12:58] Speaker 03:
The idea of the taking is the benefit is for the good of the public and the one person is having to pay the hundred percent of the price.

[00:13:06] Speaker 03:
And that's exactly what happened in this case, right?

[00:13:08] Speaker 03:
My clients paid for the benefit of the good.

[00:13:10] Speaker 04:
This isn't a situation in which

[00:13:13] Speaker 04:
the plaintiffs themselves didn't benefit.

[00:13:15] Speaker 04:
I mean, suppose that the only damage in the event of a levy breach would have been to the plaintiffs.

[00:13:26] Speaker 04:
Would you have a case here?

[00:13:28] Speaker 03:
You know, Judge Smith and I had a similar conversation in closing.

[00:13:33] Speaker 03:
It'd be a completely different case, and I don't know that I would.

[00:13:35] Speaker 03:
But what I know here is that you have to somehow balance that concept that I'm paying 100% of the price for the public good, which is a taking, with that idea that I'm receiving some benefit of the levy.

[00:13:50] Speaker 03:
But it begs the question, if the only question is you're receiving a benefit, then every levy bill would be of a benefit.

[00:13:59] Speaker 04:
These plaintiffs were better off because of the rising of the lake level than they would have been if it hadn't been raised, right?

[00:14:06] Speaker 04:
I mean, you make a specific finding to that effect.

[00:14:10] Speaker 03:
I think I appreciate the fact that the real crux of this case is what y'all are saying, and that is, hey, if the mainline levee would have breached, you would have suffered greater damages.

[00:14:20] Speaker 03:
That's the question, right?

[00:14:22] Speaker 03:
And Judge O'Malley's right that that doesn't really fall in the causation analysis.

[00:14:26] Speaker 03:
That calls on the necessity and the relative benefits doctrine analysis is where that falls.

[00:14:33] Speaker 03:
That doesn't fall in the causation piece.

[00:14:35] Speaker 03:
And so if you ask that question under the, say, the necessity doctrine, that, you know, that's the idea, right?

[00:14:42] Speaker 03:
Bowditch is the case of the fire raging through Boston and they take down a house where your house is going

[00:14:48] Speaker 03:
burn up anyway, or the enemy in Manila in the Caltechs case is going to take over your refinery, you're going to lose that anyway.

[00:14:55] Speaker 03:
Those are kind of the necessity doctrine type defenses that would be really an exception to the takings doctrine.

[00:15:02] Speaker 03:
And I want to make that clear.

[00:15:03] Speaker 03:
So this is a taking, and once the taking occurs, the government says, wait a minute, it would have happened to you anyway.

[00:15:11] Speaker 03:
So what are you really complaining about?

[00:15:14] Speaker 03:
You get Relative Benefits Doctrine or this Necessity Defense type

[00:15:18] Speaker 03:
One thing that ties to is every levee built falls into this category, doesn't it?

[00:15:25] Speaker 03:
Kind of what you were saying in the sense that if you build a levee, it's to stop water from coming over someone's property, right?

[00:15:32] Speaker 03:
If that's the only question, then the government has the free right to build a levy anywhere they want on anyone's property and stop water from flooding it and say, well, wait a minute, you're receiving a benefit because I'm stopping you from flooding and I'm going to take half your land for the levy.

[00:15:48] Speaker 03:
And that's not the case.

[00:15:49] Speaker 03:
You have to pay for the levy.

[00:15:51] Speaker 02:
Mr. Alston, excuse me.

[00:15:53] Speaker 02:
If the government takes land to construct a levy, there would be an imminent domain situation and there would be

[00:16:01] Speaker 02:
there would be compensation there.

[00:16:03] Speaker 02:
But let me ask you, I think, let me ask you one question.

[00:16:07] Speaker 02:
Assume for the moment that the government had not raised the level of the water in Eagle Lake, okay?

[00:16:15] Speaker 02:
And assume further that the levy had breached and there'd been terrible damage to your clients and others.

[00:16:25] Speaker 02:
In that situation, do you think you would have had a cause of action in tort

[00:16:32] Speaker 02:
The cause of action being, look, Corps of Engineers, you should have raised the level of the water in Eagle Lake.

[00:16:38] Speaker 02:
If you had, the levee wouldn't have breached.

[00:16:42] Speaker 03:
No, I don't think you'd have that claim.

[00:16:46] Speaker 03:
I think the courts have been clear about the ability to kind of make the Corps do something versus when they actually do a taking.

[00:16:55] Speaker 03:
Those are two different things.

[00:16:56] Speaker 03:
I was careful in my lawsuit, actually.

[00:16:57] Speaker 02:
Oh, no, I agree.

[00:16:59] Speaker 02:
You're not asserting a tort, but I'm saying, do you think there'd be a cause of action for Corps negligence if the Corps had failed to raise the level of the lake and as a result, the levy had breached?

[00:17:12] Speaker 02:
I know it's not a takings claim, but would there have been a tort claim for negligence on the part of the court?

[00:17:18] Speaker 03:
I don't think so.

[00:17:19] Speaker 03:
I don't think that would be successful, Your Honor, no.

[00:17:21] Speaker 03:
Okay.

[00:17:23] Speaker 03:
Go ahead.

[00:17:24] Speaker 01:
Counsel, as I understand it, what you're saying, am I correct, is that you don't think the government can pick and choose who is sacrificed for the greater good.

[00:17:39] Speaker 01:
Is that right?

[00:17:40] Speaker 03:
That is the basic idea of a taking, yes.

[00:17:43] Speaker 01:
All right.

[00:17:46] Speaker 01:
But it's true that not only would others have been sacrificed, but that these particular property owners would have been even more so sacrificed than they were under this circumstance.

[00:17:58] Speaker 01:
Isn't that right?

[00:17:59] Speaker 03:
I would think that's true.

[00:18:00] Speaker 03:
My expert said it was a high likelihood, a 95% chance that Libby was going to break.

[00:18:07] Speaker 03:
So I will accept, I'm not running from that fact.

[00:18:11] Speaker 03:
The problem is if that's true, then if that's the question, then you're given the government the right at any moment to say, well, if you're going to get a benefit from this, I get to do the taking.

[00:18:24] Speaker 03:
Why is the levy in the eminent domain even happened?

[00:18:27] Speaker 03:
Why is it paid for?

[00:18:29] Speaker 03:
Why is the expansion of one of my favorite facts in this is that the expansion, the permanent fix, the raising of the lake was a temporary fix.

[00:18:39] Speaker 03:
The permanent fix that went in afterwards, they had to purchase additional length, they were extending the size of the levy, makes sense.

[00:18:46] Speaker 03:
and they had to pay for that.

[00:18:48] Speaker 03:
Why?

[00:18:49] Speaker 03:
What's the difference between the water put on my land as a temporary berm and the permanent sand put on other people's land for a permanent berm?

[00:18:56] Speaker 03:
For just what y'all are saying, for the benefit of everyone, but one person is paying that price, but that person's receiving a benefit too, their land would be flooded just like mine.

[00:19:04] Speaker 03:
But you have to pay for that when you put a levy on someone's land, just as if you put a temporary water berm.

[00:19:11] Speaker 03:
This case is a little different.

[00:19:12] Speaker 03:
I think it's unusual to use water as a

[00:19:16] Speaker 03:
levee, but that's what they did.

[00:19:17] Speaker 03:
They took water from a separate source, not from the Mississippi River, mind you, from what we call the backwater.

[00:19:23] Speaker 03:
So it was the landside levee water and put it into the lake, so water that wasn't going to flood my property if the levee broke, and raised it to put pressure on both sides of the levee.

[00:19:36] Speaker 04:
Under your theory, wouldn't Sponenberger, for example, come out the other way because

[00:19:42] Speaker 04:
There was a situation in which the government flood control program benefited lots of people, and it benefited the plaintiff more than it hurt her.

[00:19:56] Speaker 04:
So in those circumstances, wouldn't there be liability?

[00:20:00] Speaker 04:
And yet the Supreme Court said there wasn't.

[00:20:02] Speaker 03:
You know, the Sponenberger is kind of a balancing test that we have to use.

[00:20:05] Speaker 03:
But in Sponenberger, there was a line of levees and they let a lower place in different places to make sure the levees survived.

[00:20:12] Speaker 03:
And the plaintiff was saying, well, I wanted you to put the whole levee up a whole way.

[00:20:16] Speaker 03:
And that was that claim, right?

[00:20:18] Speaker 03:
It's kind of a, you didn't do enough there.

[00:20:21] Speaker 03:
That's not our case.

[00:20:23] Speaker 03:
Our case is a direct action where they took my land and created a water levee for a temporary purpose.

[00:20:31] Speaker 03:
So that makes it different just under the facts, but even if you take kind of the language of the slight damages versus great benefit analysis,

[00:20:42] Speaker 03:
you run into really a clearly erroneous standard in Judge Smith who looked at that and said, no, these are significant damages.

[00:20:49] Speaker 03:
A lot of the trial was about the kind of the investment-backed expectations of these plaintiffs and what they expected from living on that lake.

[00:20:57] Speaker 03:
And one of the things that the court and I think everyone would agree that they certainly did not expect government

[00:21:03] Speaker 03:
action to intentionally flood their property.

[00:21:06] Speaker 03:
That's an expectation they were comfortable having.

[00:21:09] Speaker 03:
And so these weren't slight damages done to my property.

[00:21:12] Speaker 03:
These were significant damages that took away their benefit.

[00:21:16] Speaker 04:
And so in running... I did prevent even more significant damage to these particular plaintiffs.

[00:21:24] Speaker 04:
In a different situation, if these plaintiffs had suffered more damage as a result of the

[00:21:31] Speaker 04:
level of the lake increasing than they would have if the levy had breached.

[00:21:37] Speaker 04:
Totally different case, but these people were by their own admission, by their own finding of the Court of Federal Claims better off than they would have been if the government hadn't raised the lake level.

[00:21:49] Speaker 03:
I don't disagree with that fault, but that's not the question of Sponenberger.

[00:21:56] Speaker 03:
Sponenberger doesn't say that if you receive benefit, then it's still not a taking.

[00:22:01] Speaker 03:
It's not an exception in that way.

[00:22:04] Speaker 03:
It's interesting, you know, in normal, limited domain, you don't get the benefit of a road coming onto your property.

[00:22:10] Speaker 03:
If the road comes under your property and it increases the value of your land, you don't get that benefit.

[00:22:14] Speaker 03:
The government still has to pay for the road as if you weren't receiving that benefit because the Constitution says it has to be just compensation.

[00:22:23] Speaker 03:
And so when you use my land for your water berm, for your levee, whether it's temporary or not,

[00:22:31] Speaker 03:
you have to pay for the taking.

[00:22:33] Speaker 03:
You have to pay for what you've taken for that moment.

[00:22:36] Speaker 03:
And the fact that you would have been hurt worse if the levy would have breached, well, that gets into that equation where you say, well, if it breached, there'd have been 900,000 acres that got flooded.

[00:22:48] Speaker 03:
You would have had 4,000 structures that were flooded, not the 40 structures of my clients.

[00:22:54] Speaker 03:
And that's a different thing.

[00:22:55] Speaker 03:
And that's the balancing act that Spone & Barger raises.

[00:22:58] Speaker 03:
It's the relative benefits test where they say, well, if it's just slight damage, this wasn't slight damage to my clients.

[00:23:04] Speaker 03:
This was 100% damage to my clients.

[00:23:06] Speaker 03:
Frankly, they couldn't even use their houses during the flood anyway, so it took it away from them.

[00:23:11] Speaker 04:
It wasn't 100% damage to your clients.

[00:23:15] Speaker 04:
The record shows and the finding is that they didn't suffer the kind of catastrophic damage to their property that would have happened if the levy had breached.

[00:23:25] Speaker 03:
i did the effect that when i i meant at the time of the flood they couldn't go to the property at the moment it was a hundred percent but you're right once the flood went back down the their houses for fun and that was a good thing and they received a benefit for that uh... i'm not uh... i'm not afraid of that what i don't think the law is though is that if you receive a benefit they can take the rest of your property they've also not the law that you can take a lot of someone's property but as long as they get a little bit of a get benefit out of it

[00:23:53] Speaker 03:
then the government's free to do it.

[00:23:55] Speaker 03:
Sponenberger doesn't say that.

[00:23:56] Speaker 01:
Well, it's a relative benefit.

[00:23:57] Speaker 01:
It's a relative benefit analysis.

[00:23:59] Speaker 01:
Do you read Sponenberger to talk about the greater good benefits or just the greater benefits to the individual property owner?

[00:24:08] Speaker 03:
I think if you really read Sponenbarger and want to understand what she's talking about, what the complaint is in Sponenbarger, that is the lower parts of the levy that are creating the damages, or what she calls damage, or the plaintiff in that case, call damages to their property.

[00:24:25] Speaker 03:
That, yes, I do think you get into the conversation that it's a public question of what's the greater good.

[00:24:30] Speaker 03:
I don't think it's just as to that individual.

[00:24:33] Speaker 03:
But that goes back to my point about you couldn't put a levee on my land.

[00:24:38] Speaker 03:
Let's say the permanent fix was forever.

[00:24:42] Speaker 03:
They would have taken land if the flooding was permanent.

[00:24:46] Speaker 03:
So they take that property permanently, but they still save my houses.

[00:24:50] Speaker 03:
Well, no, we wouldn't have this question.

[00:24:51] Speaker 03:
That's any damn bill, right?

[00:24:53] Speaker 03:
Mr. Alston?

[00:24:55] Speaker 02:
Mr. Alston, excuse me.

[00:24:57] Speaker 02:
You've been discussing Spahn and Barger with Judge Dyke and Judge O'Malley, but it does seem to me that a number of cases in the Court of Claims have followed Spahn and Barger in situations that are quite similar

[00:25:17] Speaker 02:
by reasoning to this case, and I'm thinking of Hardwick, Arcmo Farms, Accardi, and the Barts cases, those do seem to focus on not this greater good balancing that you'd been referring to, but rather on the balancing of the interests of the particular plaintiff involved.

[00:25:41] Speaker 02:
And those cases do seem to support

[00:25:44] Speaker 02:
an application of the relative benefits doctrine in a situation like this, it seems to me.

[00:25:51] Speaker 03:
Well, I understand that.

[00:25:52] Speaker 03:
In fact, there are cases that do it to the individual.

[00:25:57] Speaker 03:
But I'll accept, and I'll accept it even under that Spone and Barger analysis, if you read Judge Smith's opinion and the record in this case, my client suffered

[00:26:07] Speaker 03:
suffered significant damages.

[00:26:09] Speaker 03:
That's the first piece you have to get past, kind of in that Sponenbarger fault process.

[00:26:13] Speaker 03:
Once you accept that my client suffered significant damages, then you can start talking about kind of the relative benefits analysis.

[00:26:20] Speaker 03:
They didn't, their houses weren't taken away, and that's a good thing, and so they received some benefit.

[00:26:25] Speaker 03:
But the idea that, I think my time's up, the idea that this isn't significant damages

[00:26:33] Speaker 03:
simply isn't what was proved.

[00:26:35] Speaker 03:
We proved it at trial and Judge Smith agreed with us under that scenario.

[00:26:41] Speaker 04:
Okay.

[00:26:41] Speaker 04:
Unless there are further questions, we'll hear a rebuttal from Mr. Arbab.

[00:26:47] Speaker 04:
Hearing none, Mr. Arbab?

[00:26:53] Speaker 05:
Yes, thank you, Your Honors.

[00:26:56] Speaker 05:
I think I have three points I'd like to make.

[00:27:01] Speaker 05:
First of all,

[00:27:03] Speaker 05:
On intentionality, I think it's, as I was saying in my opening argument, I think intentionality is not relevant to the causation question.

[00:27:16] Speaker 05:
And I would refer the court back to St.

[00:27:21] Speaker 05:
Bernard Parish, where the court discussed the Arkansas game case.

[00:27:29] Speaker 05:
And there, in St.

[00:27:31] Speaker 05:
Bernard Parish, the court made it quite clear what the proper comparison was in Arkansas game, that you compared what would have happened with the dam at issue in place and without the dam in place.

[00:27:48] Speaker 05:
And that's the question.

[00:27:49] Speaker 05:
That's not a matter of did the court build the dam intentionally.

[00:27:54] Speaker 05:
It's a question of how do you compare what would have happened if the dam

[00:27:58] Speaker 05:
was built and if there were no dam in place.

[00:28:04] Speaker 05:
Secondly, Mr. Alston referred numerous times to the fact that, in his view, the Corps built a so-called temporary water berm on plaintiff's properties, namely over their piers and boathouses.

[00:28:23] Speaker 05:
Well, with all respect, I don't think that labeling

[00:28:27] Speaker 05:
something a temporary water berm really gets at the legal issues that are posed here by causation, by the relative benefits doctrine, by the doctrine of necessity, and by whether there was even a temporary taking under Arkansas game.

[00:28:44] Speaker 01:
I think as Judge Dyke pointed out numerous times... Well isn't there a difference between the government not acting and therefore allowing a flood to naturally occur

[00:28:56] Speaker 01:
and the government deciding to purposely pour water onto a land in order to essentially act as a buffer.

[00:29:08] Speaker 05:
Your Honor, the question still would need to be asked, what is the relevance of that fact under any of the four doctrines that the government is relying on here?

[00:29:22] Speaker 05:
And I think one of the critical questions is,

[00:29:26] Speaker 05:
What would have happened if the Corps had not put the temporary water berm on plaintiff's boat houses and piers in April of 2011?

[00:29:35] Speaker 05:
As we know, the CFC made a finding that there would have been a near certain breach of the levee, and not only would the piers and boat houses have been damaged, but the houses would have been totally inundated.

[00:29:47] Speaker 05:
So plaintiffs would have been left much worse off if the Corps had not placed the so-called temporary water berm.

[00:29:55] Speaker 05:
on their peers in boathouses.

[00:29:58] Speaker 02:
So, Mr. Arben, you're arguing there the Relative Benefits Doctrine, right?

[00:30:06] Speaker 05:
Well, Your Honor, as I believe the Relative Benefits Doctrine has a broader temporal scope, but I think you could view it that way.

[00:30:17] Speaker 05:
You could view it as an element of, as a consideration under the Causation Doctrine.

[00:30:23] Speaker 05:
Mr. Alston,

[00:30:25] Speaker 05:
said numerous times that his clients do not suffer only slight damages under the Sponenberger concept.

[00:30:34] Speaker 05:
But I would just point out that the Court of Federal Claims itself found that all but one of the properties only suffered 12% or less diminution in value.

[00:30:45] Speaker 05:
And their damages certainly would have been much greater if the levy had breached.

[00:30:49] Speaker 05:
So 12% or less.

[00:30:51] Speaker 01:
What about the property with the 70% damage?

[00:30:54] Speaker 01:
Is that different?

[00:30:57] Speaker 05:
Your Honor, I believe it's the O'Malley property.

[00:31:01] Speaker 05:
No, I'm sorry.

[00:31:01] Speaker 01:
No relation.

[00:31:02] Speaker 05:
It's the McNeely.

[00:31:03] Speaker 05:
The McNeely property.

[00:31:06] Speaker 04:
Yes.

[00:31:07] Speaker 05:
That the CFC found suffered.

[00:31:09] Speaker 04:
Under the government, it didn't suffer 70% damage, right?

[00:31:13] Speaker 04:
It was only about 20%.

[00:31:17] Speaker 05:
The McNeely property, the CFC found suffered about 40% damage.

[00:31:23] Speaker 05:
But even so, that

[00:31:26] Speaker 05:
When you look at the causation analysis question, when you look at any of the other doctrines we're speaking about, that fact in and of itself is not dispositive of whether that individual plaintiff was entitled to just compensation.

[00:31:42] Speaker 04:
Okay.

[00:31:43] Speaker 04:
Unless there are further questions from my colleagues, I think we're finished with the argument.

[00:31:50] Speaker 04:
Hearing none, thank both counsel.

[00:31:53] Speaker 04:
The case is submitted.

[00:31:54] Speaker 04:
That concludes our session for this morning.

[00:31:57] Speaker 00:
The honorable court is adjourned until this morning at 11 a.m.