[00:00:00] Speaker 02:
case this morning is number 22, 2026 Board of Supervisors of Essequena County versus United States.

[00:00:12] Speaker 02:
Okay, Mr. Pendley.

[00:00:18] Speaker 03:
May it please the court.

[00:00:19] Speaker 03:
Good morning, Your Honor.

[00:00:21] Speaker 03:
Uh, Patrick Pendley, member of the bar from Louisiana and a new member of the bar of this court.

[00:00:28] Speaker 03:
Basically, before I start the argument, I like to observe that looking around at all the council in dark blue and dark gray suits, I feel like a social peanut wearing my seersucker.

[00:00:40] Speaker 02:
You're allowed to wear a seersucker.

[00:00:45] Speaker 03:
You know, this matter involves, believe it or not, the great flood of 1927 on the Mississippi River and lingering impacts

[00:00:58] Speaker 03:
even to this day, of that flood and the economic disaster that happened thereafter.

[00:01:08] Speaker 02:
But why are we here?

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The Court of Federal Claims dismissed finding that you hadn't sufficiently alleged but for causation.

[00:01:22] Speaker 02:
Why didn't you say you have an expert who testified to that?

[00:01:26] Speaker 02:
Why didn't you simply amend the complaint to satisfy the Court of Federal Claims with an explicit allegation, which you say you were capable of making?

[00:01:36] Speaker 03:
Well, Your Honor, we thought we had amended the complaint to satisfy the pleading requirements.

[00:01:44] Speaker 02:
Well, why didn't you amend it again when the district, when the court of federal claims made its ruling?

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Well, because we thought we had satisfied, of course, once Judge Smith ruled, then there was nothing to amend at that point because he dismissed the case that's in entirety.

[00:02:04] Speaker 02:
Well, you could have asked to amend at that point.

[00:02:07] Speaker 03:
Well, true, Your Honor, absolutely true.

[00:02:10] Speaker 03:
We could, but if this court reverses Judge Smith's opinion, which we think it should, just based on the fact that we did amend and we believe we have alleged causation for the damages that have been sustained by Issaquita County, Mississippi.

[00:02:35] Speaker 03:
as a result of the flooding in 2019 of that county and the immense destruction that occurred.

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So, and that's about all I can say on that, Your Honor.

[00:02:52] Speaker 03:
Yes, sir.

[00:02:53] Speaker 00:
I at least want to see if I can get more from you than that.

[00:02:58] Speaker 00:
There's an original complaint and an amended complaint.

[00:03:01] Speaker 00:
Are you suggesting that you did the amendment

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specifically cognizant of the problems that you needed to plead but for causation, and that's why you amended?

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We filed the original complaint, Your Honor.

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We amended when counsel for DOJ suggested to us that our original complaint was not sufficient, at least in his... I'm sorry, on the but for causation grounds?

[00:03:30] Speaker 03:
Yes, yes.

[00:03:32] Speaker 03:
So we filed the amended

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complaint that was then followed by the motion.

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And why did you not at that point include any express allegation that the flooding that you sadly suffered 2018-2019 was worse than it would have been had the government not done what it had done?

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I don't see any explicit allegation of that.

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I think I would respectfully suggest that

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That's a very strict reading, if you will, of the complaint and the situation that occurred.

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It's without any factual basis in the record, because there is no evidence in the record, because we're hearing a motion to dismiss, not a motion for summary judgment.

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It's just difficult for us to

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to argue, but we alleged in the... Yeah, the complaint does need to allege but for causation.

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There's a case that seems quite similar to this one which neither side cites called A&D Auto Sales, which is a takings case and it says you have to allege but for causation.

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Yeah, the similar case, a recent case, is the Mississippi versus the United States of America that was

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decided by Judge Kaplan recently.

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And she set out... It's not binding on us, whatever she said.

[00:05:14] Speaker 02:
I'm sorry, Judge.

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It's not binding on us.

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It's not authority.

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I understand, Judge.

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But she set out the criteria which we looked at and considered and believed that we had satisfied the criteria necessary at this stage of the case.

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which was the pleading stage of the case.

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But it's no question, based on your expert report, that you could have explicitly alleged but for causation, right?

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And did you have the expert report when you amended the complaint?

[00:05:47] Speaker 03:
Well, we have the expert report.

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Did you have it at the time you amended?

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No, we did not, Judge.

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That came later.

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It came a little later.

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But we have it.

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But it's not part of the record.

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this court can't consider.

[00:06:05] Speaker 00:
Did you feel at the time of the amended complaint that it would be inconsistent with your ethical, you know, constraints as an attorney to allege in good faith that, hey, the flooding is worse than it would have been if the government hadn't done what it did?

[00:06:21] Speaker 00:
I don't understand what was holding you back.

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It's basically one sentence you needed in the complaint.

[00:06:27] Speaker 03:
Well, of course, we looked at the case law at the time.

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And we didn't necessarily agree with Mr. Todd.

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But rather than... Didn't necessarily agree with him that you had to allege but for causation?

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You know, I don't recall.

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I just know that he was saying, really, you need to freshen up your complaint.

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Is it your view that you did allege but for causation or that you didn't need to allege?

[00:07:02] Speaker 03:
We believe that we alleged it.

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No, we didn't use it.

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This is what, in paragraph 27 of your complaint?

[00:07:08] Speaker 04:
Yes, I believe that's correct.

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Let's see.

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Have your amended complaint?

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27.

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Yes, sir.

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27 of the amended complaint.

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It's our belief, perhaps erroneously, that... Do you have any hesitation?

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If we sent this back in this case, where to go forward?

[00:07:51] Speaker 00:
Do you have any hesitation in filing an amended complaint if you were given leave to do so that contains the allegations that are in your brief that are not in your complaint, like that the flooding used to be predictable and now due to what the government does, it's not predictable?

[00:08:06] Speaker 00:
Or at page seven of your opening brief, you say we've experienced flooding of a greater depth and duration than if the government had taken no action at all.

[00:08:16] Speaker 00:
Do you have any reluctance, hesitancy,

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or doubt that if you were permitted to do so, you could file a second amendment complaint with those allegations.

[00:08:25] Speaker 03:
After this discussion, there's no question about that, Judge.

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Clearly, we would do that.

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We did not believe that the words but for were necessarily magical words.

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I mean, it's the context that we were alleging the facts of what happened and the reason

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why the flooding occurred that we were alleging in the original complaint and in the amended complaint.

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And we read, we looked at the cases that Judge Kaplan pointed out in the state of Mississippi case and other cases have said is that taking

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Hacking's claims involving flooding are very fact-oriented.

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And we believe that we hit a ledge.

[00:09:30] Speaker 02:
Well, that's exactly why you need to be specific about the allegations.

[00:09:34] Speaker 03:
Well, Judge, I... It's not hard.

[00:09:39] Speaker 03:
No, I'm not.

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It is not hard, Judge.

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I understand.

[00:09:42] Speaker 03:
It is not hard.

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You have saved yourself all the things for taking this appeal.

[00:09:46] Speaker 03:
Well, because we alleged, we set forth the history, we set forth what physically, as we understood, happened in 2018 and 2019 on the Mississippi River and the Yazoo River.

[00:10:00] Speaker 00:
Let me ask you this because I have a feeling we're going to hear it from government council.

[00:10:05] Speaker 00:
And this is my concern as well.

[00:10:10] Speaker 00:
They pointed out to you before filing a motion to dismiss what the deficiencies were in your complaint.

[00:10:18] Speaker 00:
You tried to correct them.

[00:10:19] Speaker 00:
It seems to me you failed.

[00:10:22] Speaker 00:
You then take an appeal.

[00:10:25] Speaker 00:
You don't ask us to send the case back with leave to amend.

[00:10:30] Speaker 00:
You don't even come in here today, really, and ask to let us file an amendment.

[00:10:35] Speaker 00:
You really seem to be here principally to convince us that you've already done enough.

[00:10:40] Speaker 00:
Uh, is it really, is it fair to the government or on what principle would you cite that says we can go ahead and at this very late stage when the government's had to, you know, respond to your complaint, win a motion to dismiss, brief an appeal, argue an appeal that we could at that late stage say, well, no harm, no foul, go back and try again.

[00:11:06] Speaker 03:
Well, first of all, I don't think it's a late stage of the litigation at all.

[00:11:10] Speaker 03:
The government has never even answered either one of the complaints, the original or the amended complaint.

[00:11:16] Speaker 03:
I mean, to me, we're in the embryonic stage of the litigation.

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And I fully expect that what we're asking is the court to reverse Judge Smith and send it back for further proceedings.

[00:11:32] Speaker 03:
Now, I fully expect that as we do the further proceedings, that there will probably have to be amendments.

[00:11:40] Speaker 03:
Whether we amend and just use the magic words, but for the Corps of Engineers' decisions regarding failure to put the pumps in, then there are going to be, I'm sure, other amendments that are going to have to be made.

[00:11:57] Speaker 02:
Okay, but the failure to put the pumps in doesn't state a takings plan.

[00:12:00] Speaker 02:
That's inaction under St.

[00:12:02] Speaker 02:
Bernard Parish.

[00:12:04] Speaker 02:
I'm sorry.

[00:12:05] Speaker 02:
The failure to put the pumps in, it doesn't state a takings claim.

[00:12:10] Speaker 02:
St.

[00:12:10] Speaker 02:
Bernard Parish considered exactly that kind of situation and says that's inaction and it doesn't state a takings claim.

[00:12:20] Speaker 03:
Absolutely, Your Honor, and we don't fumble with that.

[00:12:23] Speaker 03:
Two things, though.

[00:12:24] Speaker 03:
St.

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Bernard's case came on appeal after the trial on the merits.

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And the plaintiffs in St.

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Bernard, as we read St.

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Bernard,

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just didn't carry the burden of proof.

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We're not anywhere near that stage of the proceeding.

[00:12:41] Speaker 03:
It is not inaction on the part of the Corps of Engineers to not put the pumps.

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This was one project to build the dikes, I mean, or build the gates, the levees, and put the pumps in.

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And that recognition of what was going to happen when the rivers were leveed

[00:13:04] Speaker 03:
It was all the way back into the early twenties.

[00:13:06] Speaker 00:
Are you saying not putting pipes in is not inaction?

[00:13:10] Speaker 03:
I'm saying that when they failed to put what they said they were going to do, that was not inaction because it's all part of one project.

[00:13:20] Speaker 03:
As I understand, inaction is when a situation occurs and government just doesn't do anything about it.

[00:13:27] Speaker 03:
Here, they said, we're going to do three things.

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We're going to build levees, we're going to put the gates in, and we're going to put the pumps in to pump water over the dike to keep it from, because we recognize it's going to pond and build up behind the gate.

[00:13:44] Speaker 02:
Suppose we say that under St.

[00:13:46] Speaker 02:
Bernard Parish that you don't have a case based on an allegation of failure to put the pumps in, that that doesn't help you state a takings claim.

[00:13:56] Speaker 02:
What's left?

[00:13:57] Speaker 02:
You have a case left?

[00:13:59] Speaker 03:
We wouldn't have a case left, you know.

[00:14:01] Speaker 04:
I don't understand that.

[00:14:08] Speaker 04:
The pumps, I take it, are just something that would have, in your view, ameliorated the problem that was created by the levees and by the leveeing the river.

[00:14:19] Speaker 04:
And that leaving the pumps out meant the project as a whole, in your view, as I understand it, left the people in that particular area of Isoquina County

[00:14:32] Speaker 04:
subject to greater flooding than would have occurred if the levees hadn't gone up.

[00:14:37] Speaker 04:
So the pumps don't really have, I mean, it would be nice if the pumps were there and you wouldn't have the problem, maybe.

[00:14:44] Speaker 04:
But your case, I take it, is that the leveeing of the river without pumps created a problem that wasn't there before, i.e.

[00:14:55] Speaker 04:
but for, right?

[00:14:56] Speaker 03:
Is that a fair characterization of your case?

[00:15:01] Speaker 03:
the depth of the water and the duration of the flood, failure to put the pumps in is what occurred.

[00:15:10] Speaker 03:
Now, we're not saying... Judge Bryson is trying to help you.

[00:15:16] Speaker 03:
I understand.

[00:15:18] Speaker 03:
I appreciate that, Judge.

[00:15:20] Speaker 03:
I really do.

[00:15:22] Speaker 03:
But I'm trying to be straightforward with the court.

[00:15:26] Speaker 03:
Some of this land behind the dike,

[00:15:30] Speaker 03:
It did flood.

[00:15:31] Speaker 03:
We're not saying that it never flooded.

[00:15:33] Speaker 03:
And this was a first-time flood like Upper Addix and Barker.

[00:15:39] Speaker 03:
Well, it clearly flooded in 1927.

[00:15:42] Speaker 03:
Right.

[00:15:43] Speaker 03:
Right.

[00:15:43] Speaker 04:
Yes, it did.

[00:15:44] Speaker 04:
It did.

[00:15:46] Speaker 04:
All right.

[00:15:46] Speaker 04:
But your argument, in effect, seems to me is that the project, as it was initially conceived,

[00:15:57] Speaker 04:
Would have been fine if they'd had the pumps and so forth, at least probably.

[00:16:01] Speaker 04:
But since they didn't do the last part of what they had planned to do, then the project is exactly the same as if it had been designed without the pumps and the drains.

[00:16:13] Speaker 04:
Right?

[00:16:14] Speaker 04:
Right.

[00:16:14] Speaker 04:
And as such, that was a project that was going to make things maybe better for people upstream and downstream, but it was not making it better for the people in that area of Issaquena County.

[00:16:26] Speaker 04:
Right?

[00:16:26] Speaker 03:
That's correct.

[00:16:27] Speaker 04:
All right.

[00:16:27] Speaker 04:
So the, the draining really doesn't have anything to do with anything.

[00:16:31] Speaker 04:
Well, it happens, it so happens that if they had put the drains in, they'd be better off, but looking at the pumps, I mean the pumps and so forth, but if they had, uh, uh, initially conceived the project without the pumps, you would be here with exactly the same claim, right?

[00:16:51] Speaker 03:
Well, of course, because they built the dyke and the levee and

[00:16:54] Speaker 03:
You'd have made a bathtub with no way to drain it.

[00:16:57] Speaker 03:
And that's what you got.

[00:16:59] Speaker 03:
That's what we got.

[00:17:00] Speaker 03:
But that's not what they sold.

[00:17:02] Speaker 00:
Okay, but you've got, just to be clear, you've got that even if we say the pumps, the failure to put pumps in is not part of your claim.

[00:17:11] Speaker 00:
You still have, they built some walls and they didn't drain it anywhere.

[00:17:15] Speaker 00:
And that's government action.

[00:17:17] Speaker 00:
You would still have a case or you would not have a case?

[00:17:20] Speaker 03:
No, the pumps, it was designed to save us.

[00:17:24] Speaker 03:
Right.

[00:17:26] Speaker 03:
In other words, the pumps were designed to keep the water behind the gates and behind the levees in its normal banks, because that area is covered with little streams and bayous and tributaries.

[00:17:38] Speaker 03:
But what we have is we've got this water that's flooding, that piles up.

[00:17:44] Speaker 03:
And granted, the water that fell, the storm water that fell in 2018 and 2019 behind the gates

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was very unusual.

[00:17:56] Speaker 03:
It was much more extreme than normal.

[00:18:00] Speaker 03:
But had the pumps been there, they're designed to keep this water moving out when it can't normally or naturally flow through the gates because the gates are closed.

[00:18:15] Speaker 02:
Why don't we hear from the government?

[00:18:16] Speaker 02:
We'll give you two minutes for a bottle.

[00:18:18] Speaker 02:
Mr. Todd?

[00:18:29] Speaker 01:
Good morning, Your Honor.

[00:18:30] Speaker 01:
Smith, please.

[00:18:31] Speaker 01:
The court, Brian Toth from the United States Department of Justice, representing the government as defendant appellee.

[00:18:36] Speaker 01:
I'd like to start.

[00:18:39] Speaker 01:
It seems like there's a lot of common understanding between the sides on what the correct law is and what needs to be proved at trial.

[00:18:46] Speaker 02:
Their main allegation, as you know, is that... Well, I'm not sure that there's agreement about that because he keeps talking about the pumps and the you are you.

[00:18:55] Speaker 02:
and St.

[00:18:56] Speaker 02:
Bernard Parish seems to support you that the federal to put in the pumps is inaction, which couldn't lead to a takings claim.

[00:19:02] Speaker 02:
They'd have to say, put aside the pumps.

[00:19:05] Speaker 02:
This project made the flooding for us worse than it would have been without the project.

[00:19:10] Speaker 01:
Right.

[00:19:11] Speaker 01:
I don't think, I mean, if you look at their appellate brief, what they've written in their single appellate brief, they didn't file a reply to our arguments.

[00:19:18] Speaker 01:
They did not challenge the court of federal claims is holding that inaction doesn't

[00:19:23] Speaker 01:
sufficiently support a takings claim.

[00:19:26] Speaker 01:
So any challenge to that is forfeited here.

[00:19:29] Speaker 01:
I think the government, and effectively what plaintiffs have done by their litigation strategy, are in agreement on that.

[00:19:35] Speaker 02:
Okay, well let's put that aside.

[00:19:37] Speaker 02:
I mean, what they seem to be saying in their brief is that we were worse off as a result of this project than we would have been before.

[00:19:46] Speaker 02:
And then under, you know,

[00:19:50] Speaker 02:
St.

[00:19:50] Speaker 02:
Bernard and A&D Auto Sales.

[00:19:52] Speaker 02:
I don't know whether you're familiar with that case.

[00:19:55] Speaker 02:
That's what you've got to allege for a takings claim.

[00:20:00] Speaker 02:
And you said, no, you didn't allege that.

[00:20:03] Speaker 02:
And Sheriff Smith agreed with you.

[00:20:07] Speaker 02:
And I guess the question I have is, at this point, would you object to their amending their complaint to state a proper takings claim?

[00:20:17] Speaker 01:
I'm going to have to take the position that we would object because they have several reasons.

[00:20:22] Speaker 01:
They all fundamentally relate to the issue of party presentation, that it's up to the party to make its own choices through its lawyers about how to litigate a case.

[00:20:34] Speaker 01:
And you look at Twombly, it rejected the any state of facts rule where you simply look at what's pled and the facts that are pled and try and figure out whether there's any construction of those facts that would fit the legal elements of a claim.

[00:20:49] Speaker 01:
It's more driven by the parties now than it was say 20 years ago in litigation.

[00:20:53] Speaker 01:
And so you really have to look at the choices they've made.

[00:20:56] Speaker 01:
They did file an amended complaint before we moved to dismiss, but they didn't

[00:21:03] Speaker 01:
file a motion for leave to amend in response to our motion in the trial court.

[00:21:08] Speaker 01:
And then in their opening brief, they didn't make any, any to do about that.

[00:21:12] Speaker 01:
They didn't ask in their brief for leave to amend.

[00:21:16] Speaker 01:
So, and the judge, you know, in the court of federal claims didn't rule on a motion for leave to amend.

[00:21:21] Speaker 01:
So we have no idea how that court would have construed that.

[00:21:27] Speaker 04:
Taking paragraph 27 of their amended complaint.

[00:21:31] Speaker 04:
which you've got, I'm sure.

[00:21:32] Speaker 04:
Yes.

[00:21:34] Speaker 04:
What exact language do you think would be sufficient to satisfy the requirements of specificity with respect to the St.

[00:21:49] Speaker 04:
Bernard and Test and others?

[00:21:52] Speaker 04:
What exactly would they have to add to that paragraph that's not there now, either expressly or by

[00:21:59] Speaker 01:
I think they'd have to say something along the lines of absent any government action, including this project that they're talking about.

[00:22:10] Speaker 01:
the Yazoo Backwater Project, which includes that steel bayou control structure.

[00:22:15] Speaker 01:
That's one piece of the project, but also including the entirety of the Mississippi River and Tributaries Project, which contains additional levees protecting the Sequena County on the west side from flooding of direct waters from the Mississippi River.

[00:22:30] Speaker 01:
The entirety of the government action

[00:22:34] Speaker 01:
uh, flooding would not have occurred to the same, um, or a greater extent as a result of, as a result of what the government did.

[00:22:42] Speaker 01:
I may not have said that.

[00:22:45] Speaker 00:
Do you agree?

[00:22:45] Speaker 00:
They say exactly that in their blue brief.

[00:22:49] Speaker 00:
That is, if they had just submitted the brief as their amended complaint, we wouldn't be here.

[00:22:57] Speaker 00:
They come close, but I mean, they say at KH7 plaintiff's property has experienced flooding, which is of a greater depth and duration.

[00:23:04] Speaker 00:
then if the government had taken no action at all, after they explain the actions that you just described, that would be enough, wouldn't it?

[00:23:11] Speaker 00:
I think it's very close.

[00:23:12] Speaker 04:
How does it fall short?

[00:23:16] Speaker 01:
Well, the problem I have with it, it may be sufficient.

[00:23:23] Speaker 01:
The problem I have with it is that

[00:23:27] Speaker 01:
We're trying to pin it down.

[00:23:29] Speaker 04:
You may not want to be pinned down, but it's important to know exactly what you think is wrong.

[00:23:35] Speaker 01:
I think what's wrong is they bring it up in their brief on appeal.

[00:23:38] Speaker 01:
Well, I understand that.

[00:23:39] Speaker 04:
But what is wrong, Jet Stark's question is, if that language had been in the complaint, would you have any

[00:23:46] Speaker 04:
quibble or quarrel.

[00:23:47] Speaker 01:
Yes.

[00:23:48] Speaker 01:
And it's the relationship with the inaction that's pled throughout the rest of their complaint.

[00:23:53] Speaker 01:
Because you see in the rest of their complaint where they do use but for language, but they use it with respect to the pumps.

[00:24:01] Speaker 00:
But that would have been, I know we're in a counterfactual world, but that's the substance of like emotion to strike.

[00:24:09] Speaker 00:
or some way to narrow the case to make clear or a partial motion to dismiss.

[00:24:14] Speaker 00:
That's not a you, the government's completely off the hook for the allegations about the actions you took that harmed them.

[00:24:23] Speaker 01:
I think it's, even looking at the 2019 flooding,

[00:24:28] Speaker 01:
They talk in their complaint about how the government's operation of the project benefited the county when the gates were closed.

[00:24:36] Speaker 01:
Then they cherry pick the failure to raise the gates after rain fell.

[00:24:41] Speaker 01:
That's not government action.

[00:24:43] Speaker 01:
And St.

[00:24:43] Speaker 01:
Bernard says you can't cherry pick parts of the operation of the government's action without looking at it as a whole.

[00:24:49] Speaker 01:
So I would be skeptical of the lines from their brief just being transplanted to their

[00:24:55] Speaker 01:
complaint where the rest of the complaint is so overwhelmingly focused on the pumps and, and the cherry picked part of failing to raise the gates after it rained.

[00:25:06] Speaker 00:
I'd like to do some more cherry picking then of the, of the complaint we have in front of us.

[00:25:10] Speaker 00:
So paragraph 27, the judge Bryson pointed you to taking, first of all, would you agree our law is we have to read the complaint

[00:25:20] Speaker 00:
drawing all reasonable inferences in favor of the plaintiff at this early stage.

[00:25:27] Speaker 01:
Yes, with the caveat that legal conclusions don't have to be true.

[00:25:31] Speaker 00:
So the second sentence of 27 is routing the drainage of the entire Yazoo Basin to the steel bayou control structure and allowing the floodgate to remain closed created a massive pool of water for which there is no drain.

[00:25:45] Speaker 00:
Why isn't it a reasonable reading of that?

[00:25:48] Speaker 00:
that the government came in 80 years ago, built the floodgate, removed effectively a drain, and therefore the flooding is worse than it would have been.

[00:26:02] Speaker 00:
Why is that not a, I grant you it's a very generous reading, but why is that not within the realm of a reasonable reading of that sentence?

[00:26:11] Speaker 01:
I think it's putting blinders on to what they're relying on, which is the failure to complete the project as planned.

[00:26:18] Speaker 01:
And I think that gets back to omitting certain components of the project, the floodway and omitting the pumps.

[00:26:25] Speaker 00:
You're taking that from the rest of the complaint.

[00:26:28] Speaker 00:
That's not in that sentence, at least.

[00:26:31] Speaker 00:
Fair enough.

[00:26:32] Speaker 00:
What about this?

[00:26:33] Speaker 00:
At paragraph 22 of the amended complaint, A30, they write, and they're referring to the late 2018, July 2019 period, because the gates of the steel biocontrol structure were closed,

[00:26:47] Speaker 00:
The rainwater had no outlet through which to drain into the Mississippi River or anywhere else.

[00:26:53] Speaker 00:
Again, isn't it reasonable to infer that had the federal government never come down there and built all these structures, there would have been an outlet for the water to drain.

[00:27:05] Speaker 00:
And therefore, we're worse off than we would have been had you not come in originally.

[00:27:10] Speaker 01:
I don't think there's enough to reasonably infer what the pre-project state of affairs was from that one sentence.

[00:27:22] Speaker 01:
I'm happy to answer.

[00:27:24] Speaker 01:
other questions the court might have, but if not, I think it's important to understand how this project operates.

[00:27:32] Speaker 01:
I think the court has a fair understanding of it.

[00:27:35] Speaker 01:
I would just point to these diagrams that we submitted in the trial court as demonstrative on pages 47 and 48 to show that the gates will remain closed so long as the river

[00:27:49] Speaker 01:
side, the stage of the river is higher than what's on the land side of the project.

[00:27:56] Speaker 01:
And so it's fundamentally protective of them.

[00:28:00] Speaker 01:
And so it's hard to conceive of how the operation of this project in 2019 overall, just taking that as their conceptualization of the government action, how even that

[00:28:14] Speaker 01:
overall didn't benefit them.

[00:28:16] Speaker 01:
I understand there was flooding on the property.

[00:28:18] Speaker 01:
Precipitation was involved.

[00:28:19] Speaker 01:
That wasn't the act of the government.

[00:28:22] Speaker 01:
And the way the project functions and the nature of the project, as these diagrams depict, demonstrates that it's generally going to be protective when the river is high.

[00:28:32] Speaker 01:
So I think construing the complaint against that understanding of the project, it's very difficult to understand how they could successfully plead a claim.

[00:28:42] Speaker 04:
My friend also-

[00:28:44] Speaker 04:
key element of what you just said is successfully, i.e.

[00:28:47] Speaker 04:
that they could ultimately prevail.

[00:28:49] Speaker 04:
I mean, your argument now seems to be that this project, despite the unhappiness that resulted in 2019, has overall benefited everyone in the protected area, including the people in that unfortunate area that got flooded the worst.

[00:29:08] Speaker 04:
But that's a merits question.

[00:29:09] Speaker 01:
Well, I probably should have said plausibly supports.

[00:29:12] Speaker 01:
a claim rather than successfully.

[00:29:15] Speaker 01:
They don't have to obviously prove it at this stage.

[00:29:18] Speaker 01:
They do have to allege something that's plausible.

[00:29:20] Speaker 01:
And with the proper understanding of how this project operates and how it operated during the flooding in 2019, I don't believe that it's plausible just to infer that the project overall was detrimental to them, even despite the catastrophic flooding that they experienced.

[00:29:40] Speaker 00:
If we were to affirm the dismissal

[00:29:43] Speaker 00:
Uh, would they have the possibility of starting a whole new case with a complaint that, uh, is potentially adequate?

[00:29:52] Speaker 00:
That is, I mean, was this dismissal without prejudice or does it act as a prejudicial merits based, uh, dismissal?

[00:29:59] Speaker 00:
Do you know?

[00:29:59] Speaker 00:
I think it would be the latter.

[00:30:01] Speaker 01:
I think there would be a race judicata effect.

[00:30:04] Speaker 01:
I mean, if they were, that's based on the 2019 flooding.

[00:30:07] Speaker 01:
If there were new facts or new developments since then, um, they wouldn't be barred from trying to bring a new claim.

[00:30:13] Speaker 00:
So I mean, I'm really struggling on that, Candley will admit, because it does.

[00:30:19] Speaker 00:
I think there's an argument maybe that they have fled enough if you're super generous to them.

[00:30:25] Speaker 00:
But assuming I don't get that far, I think their brief is more than adequate had they put those allegations in the complaint.

[00:30:34] Speaker 00:
Maybe not to prevail on the merits.

[00:30:36] Speaker 00:
I'm not taking any of you on the merits.

[00:30:39] Speaker 00:
had they sought leave to do that, it's hard for me to imagine that a trial judge wouldn't allow them to do that.

[00:30:48] Speaker 00:
And while I completely understand your argument about party presentation, I don't know if these allegations are so significant.

[00:31:00] Speaker 00:
Would it really be wrong, I guess, for us to give them another chance?

[00:31:04] Speaker 01:
Well, I would point the court to the cases we said in the brief, brief, the Casa de Cambio case and the Kimmel case that are binding and that find it, um, find claims waived if they're not pleaded in a complaint.

[00:31:16] Speaker 01:
And, um, you know, that's, that's what we have.

[00:31:21] Speaker 01:
So, uh, you know, my, in mention, sorry, in raising these assertions in their brief,

[00:31:29] Speaker 01:
Plaintiff mentions the pretension of an expert.

[00:31:33] Speaker 01:
That was never brought into the record in the trial court.

[00:31:36] Speaker 01:
It's not part of the record on appeal.

[00:31:38] Speaker 01:
It shouldn't be considered.

[00:31:40] Speaker 01:
But even to this day, there's talk even this morning about an expert report.

[00:31:45] Speaker 01:
I haven't seen an expert report.

[00:31:46] Speaker 01:
So I am really hesitant to say that if these assertions in the brief are based on some report that hasn't been

[00:31:52] Speaker 01:
disclosed or as part of the record on appeal that that's in any way supports allowing them to go back and get yet another try at this.

[00:32:03] Speaker 00:
One last thing.

[00:32:04] Speaker 00:
Mr. Penley gave you credit as I understood it for pointing out errors in the original complaint before having to do the motion to dismiss practice.

[00:32:14] Speaker 00:
Is it correct that you pointed out the failure to plead but for causation?

[00:32:18] Speaker 01:
So I can't take credit for that.

[00:32:19] Speaker 01:
It was a different trial counsel, and I normally wouldn't say that I wasn't the trial counsel, but I'll give the trial counsel the credit here.

[00:32:26] Speaker 01:
So, and I'm not sure what the nature of those conversations was.

[00:32:30] Speaker 01:
I can say just looking at the complaint, you pointed out some of the differences in the complaint already.

[00:32:37] Speaker 01:
The big difference that I noticed in trying to do a comparison was the addition of additional details about damages.

[00:32:43] Speaker 00:
That's what I saw.

[00:32:44] Speaker 00:
Names of roads, for example, that were flooded.

[00:32:47] Speaker 04:
Was paragraph 27 in the original complaint?

[00:32:50] Speaker 04:
in its current form or amended?

[00:32:52] Speaker 00:
I think it was paragraph 25 in the original complaint.

[00:32:54] Speaker 01:
25 and 26 in the amended complaint are the ones that seemed new to me.

[00:33:00] Speaker 01:
And then there may have been a new sentence in 27.

[00:33:03] Speaker 01:
I don't have a red line in front of me, but I was just looking as I was answering.

[00:33:07] Speaker 00:
It looked to me that new 27 is old 25 and appears to be identical.

[00:33:14] Speaker 00:
So it's an interesting situation.

[00:33:17] Speaker 00:
I understood them to be giving you all the government credit for pointing out the very pleading deficiency that we're here on.

[00:33:27] Speaker 00:
But in reality, you're not sure.

[00:33:29] Speaker 00:
There's no record of that, I guess.

[00:33:31] Speaker 01:
I don't have knowledge of that.

[00:33:32] Speaker 01:
You know, often the government does confer before they file a motion.

[00:33:35] Speaker 01:
Well, if the suggestion was made, it appears to have fallen on deaf ears.

[00:33:40] Speaker 01:
Very well.

[00:33:44] Speaker 01:
I mean, out of time, but we would ask the court to affirm.

[00:33:47] Speaker 01:
Happy to answer any other questions that carry me over time, but otherwise, appreciate it.

[00:33:52] Speaker 02:
Thank you, Mr. Todd.

[00:33:54] Speaker 02:
Mr. Pendley, you have two minutes.

[00:34:01] Speaker 03:
Just a couple of observations, Your Honor.

[00:34:05] Speaker 03:
My co-counsel tells me that really DOJ pointed out that they wanted us to list all the roads

[00:34:12] Speaker 03:
in culverts and bridges that were destroyed by the 2019 flood.

[00:34:16] Speaker 03:
And that was part of the amendment that we did, the first amended complaint.

[00:34:24] Speaker 03:
And I think Judge Stark, you asked a question, or perhaps Judge Bryson, you pointed out one of our complaints was, they did not open the gate

[00:34:40] Speaker 03:
in 2019, the gates, when the river was, the riverside was higher than the landslide.

[00:34:47] Speaker 03:
Well, they couldn't open the gates because that would have exacerbated.

[00:34:51] Speaker 03:
The water would have come from the river onto the land.

[00:34:54] Speaker 03:
Yeah.

[00:34:54] Speaker 03:
I mean, the water from the river would have just flooded back in and into the Yazoo River Basin.

[00:35:02] Speaker 03:
So they couldn't open.

[00:35:05] Speaker 03:
But, and that's always been understood.

[00:35:07] Speaker 03:
They couldn't open the gates when that situation occurred.

[00:35:11] Speaker 03:
It's the problem as we see it, rightly or wrongly, is that there was no provision, notwithstanding the Corps' recognition of the problem from the 20s or early 30s at the latest, that building this levee, building this dike without some provision to evacuate the water that came on the riverside, on the landside with the gates closed,

[00:35:40] Speaker 03:
was going to be a disaster.

[00:35:42] Speaker 03:
And it wasn't just one.

[00:35:44] Speaker 03:
In the brief, we talked about the Eudora floodway, which was ultimately killed.

[00:35:53] Speaker 03:
Then they talked about the Buff River floodway through Louisiana, which was killed, both of them by intense local and political opposition to transferring that water from the Mississippi before it got

[00:36:08] Speaker 03:
down to the Yazoo River, mouth of the Yazoo River.

[00:36:14] Speaker 03:
And of course, we talked a little bit about the little Sunflower River.

[00:36:22] Speaker 03:
That's such a small situation.

[00:36:24] Speaker 03:
It really is meaningless in the overall scheme of things.

[00:36:27] Speaker 03:
It's the bayou steel flood control structure.

[00:36:32] Speaker 03:
And I just asked the court to take into consideration that it's

[00:36:37] Speaker 03:
the bayou steel flood control structure, which is three parts.

[00:36:43] Speaker 03:
It's the gates, it's the levees, and it was the pumps in the proposal.

[00:36:50] Speaker 03:
And they just, our view, the Corps just didn't follow through.

[00:36:58] Speaker 02:
Okay.

[00:36:59] Speaker 02:
Thank you, Mr. Burnley.

[00:37:00] Speaker 02:
Thank you.