[00:00:00] Speaker 02:
The first case is Adlon v. United States, docket number 23-1363.

[00:00:05] Speaker 02:
Counselor Tooth?

[00:00:07] Speaker 02:
Tooth, Your Honor.

[00:00:14] Speaker 02:
You have reserved three minutes of your time for rebuttal, is that correct?

[00:00:18] Speaker 03:
Yes, Your Honor.

[00:00:19] Speaker 02:
And Mr. Marzula, you'll argue for seven minutes, and Mr. Gershengum, you'll argue for six to two.

[00:00:29] Speaker 04:
Okay.

[00:00:34] Speaker 05:
All right.

[00:00:39] Speaker 02:
Mr. Toth.

[00:00:42] Speaker 03:
May it please the court, Brian Toth, from the Department of Justice, representing Defendant Pellant, the United States.

[00:00:48] Speaker 03:
Child Court erred in holding the government liable for a Fifth Amendment taking the plaintiff's property when their homes flooded for the first and only time in the 70-year history

[00:00:56] Speaker 03:
of the Corps' flood control project, which had operated during Hurricane Harvey, a natural disaster that was described as the Court of Federal Claims by the Florida Federal Claims as the worst storm in the recorded history of the United States.

[00:01:12] Speaker 03:
That singular event resulting in the flooding of plaintiff's properties is best understood as a trespass, not a taking of plaintiff's properties, for which it would be compensable if at all only in tort.

[00:01:26] Speaker 06:
Can you try to help me understand how much of your argument depends on the extremity of the extremeness of this weather event, and how much would apply to less extreme, once in every 10 year kind of storm?

[00:01:47] Speaker 03:
So I think the extremity is related to the frequency, which you mentioned both.

[00:01:53] Speaker 03:
The once in 10 year is a frequency.

[00:01:55] Speaker 03:
We think with a storm of this severity that it was so infrequent that plaintiff's failure to introduce any proof at the liability stage of when such a storm might recur with the flooding resulting on plaintiff's property, again to the same magnitude, was fatal to their claim.

[00:02:13] Speaker 03:
So it's an important factor.

[00:02:15] Speaker 03:
I think it cuts across the liability question, whether you're inclined to- I guess I'm interested.

[00:02:21] Speaker 06:
Suppose there were

[00:02:23] Speaker 06:
By definition, we're talking about a storm that would go beyond the government purchased land behind the dams that would reach the plaintiffs.

[00:02:34] Speaker 06:
So let's assume that this is a kind of once every 10 year event.

[00:02:39] Speaker 06:
What arguments do you still have in that hypothetical situation?

[00:02:43] Speaker 03:
In that hypothetical, we would still have the other, we think the Arkansas game and fish

[00:02:49] Speaker 03:
case would apply.

[00:02:50] Speaker 03:
I mean, they could, if they were able to demonstrate that the flooding was inevitably recurring, such that it regularly recurred once every 10 years, just as in Idycher, which the government lost, but the rule became that inevitably recurring flooding, if demonstrated to a certain frequency, is a categorical taking, notwithstanding that it's temporary and recurring.

[00:03:11] Speaker 03:
So we think that frequency is an essential component of their being able to demonstrate it.

[00:03:18] Speaker 06:
perhaps too simple-minded way of putting it.

[00:03:24] Speaker 06:
This one will inevitably recur.

[00:03:25] Speaker 06:
It's just much, much less frequent.

[00:03:27] Speaker 06:
And the value of the easement would be presumably accordingly less.

[00:03:38] Speaker 06:
Why is that not the right way to think about it?

[00:03:40] Speaker 03:
Well, it is one way you could think about it.

[00:03:44] Speaker 03:
I think there's a lot that goes into the, a lot of resources that go into a trial.

[00:03:48] Speaker 03:
not just on liability, but on compensation.

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And these valuations are very difficult because these easements are so peculiar.

[00:03:55] Speaker 03:
And I think your question, Judge Torano, highlights a factor that I'd like to mention.

[00:04:02] Speaker 03:
The Court of Federal Claims ordered the government to record an easement that it described as essentially an easement that the government would use only in the event of a natural disaster.

[00:04:11] Speaker 03:
I mean, there's no other recorded easement.

[00:04:14] Speaker 01:
Did the government concede that without the dams, at least 10 of the 13 properties would not have flooded?

[00:04:22] Speaker 03:
Would not have flooded without the dams.

[00:04:27] Speaker 03:
I'm not sure.

[00:04:29] Speaker 03:
But I know that we're not arguing causation on appeal here.

[00:04:33] Speaker 03:
And we agree that some of the properties would have flooded without, I'm not sure, without the dams.

[00:04:41] Speaker 03:
No, we're not contending that the plaintiff's properties would have flooded without the dams.

[00:04:46] Speaker 06:
I mean, there are a lot of... These are just... No, I think it's the reverse.

[00:04:50] Speaker 06:
Had the dams not been built, the water presumably would have flowed to downtown Houston, and it wouldn't have built up to at least some of these plaintiff's property.

[00:05:01] Speaker 03:
That's true.

[00:05:02] Speaker 03:
That's true.

[00:05:02] Speaker 03:
So the downstream, the causation matters more to the downstream plaintiffs.

[00:05:05] Speaker 03:
We're not arguing causation as to the upstream plaintiffs.

[00:05:08] Speaker 02:
So do you agree that the Corps created the conditions that caused the damage?

[00:05:14] Speaker 02:
The constructing, the operating, the using the project, the opening the gates, all of those combined?

[00:05:24] Speaker 02:
The Corps created the conditions?

[00:05:27] Speaker 03:
Well, we're not arguing causation.

[00:05:30] Speaker 03:
So we're not arguing that the Corps was not responsible for some increment of additional flooding that would occur.

[00:05:35] Speaker 02:
And then how's your argument about the singularity of the events they did?

[00:05:39] Speaker 03:
So that's a factor that the Supreme Court has emphasized in both its categorical cases, the most recent one, Cedar Point, and its multifactor cases, Arkansas, Game, and Fish.

[00:05:49] Speaker 03:
And it said that in either situation, no matter how you're looking at the property injury,

[00:05:56] Speaker 03:
courts have long distinguished between one-time trespass and multiple invasions that eventually ripen into a taking.

[00:06:04] Speaker 03:
And in Cedar Point, the court described it as isolated physical invasions not undertaken pursuant to a granted right of access or properly assessed as individual torts rather than appropriations of a property right.

[00:06:17] Speaker 03:
And it went on to emphasize that it had applied that same distinction, which it said was firmly grounded in its precedent

[00:06:23] Speaker 06:
But it sort of makes a difference what, at least one way to put it, is what isolated means.

[00:06:31] Speaker 06:
If it means unplanned, then that's one thing and probably excludes this case.

[00:06:40] Speaker 06:
This is a planned case.

[00:06:45] Speaker 06:
Level of the dam that would create backup of water under some circumstances more or less recognized the possibility where the water would back up sufficiently to cover some of these plaintiffs plant and if

[00:07:04] Speaker 06:
Isolated means unplanned in that sense, then that would not be a trespass.

[00:07:09] Speaker 06:
If it means just not really very frequent, that's another thing.

[00:07:15] Speaker 03:
So I would point the court to the Ridgeline decision, which quotes an older court of claims decision called Ayerbide, when it says isolated invasions, such as one or two floodings, do not make a taking.

[00:07:27] Speaker 03:
So I think this court's predecessor in Ayerbide and this court in Ridgeline

[00:07:34] Speaker 03:
discussed the isolated inquiry in terms of frequency of floodings.

[00:07:38] Speaker 03:
And I think that is a separate factor in the Arkansas game analysis distinct from foreseeability, which is how the court analyzed whether this was sufficiently planned to be knowable.

[00:07:48] Speaker 03:
And I'm happy to address foreseeability.

[00:07:50] Speaker 01:
But didn't the government also do kind of a cost benefit analysis here and was willing to effectively take the risk of possible flooding?

[00:07:59] Speaker 03:
So what the Corps did, so this gets to the foreseeability point, and what I want to say here is that the Corps acquired enough land based on the worst storm of record in the basin at the time, that was the 1935 storm, to operate the project for 70 years without ever flooding plaintiff's property.

[00:08:18] Speaker 03:
And yet, the answer to your question is yes, the Corps did undertake a benefit analysis about whether to acquire additional land to the

[00:08:28] Speaker 03:
to the point where it would be necessary to operate the project to avoid a catastrophe of the damn utterly failing.

[00:08:37] Speaker 03:
Now, that didn't occur here.

[00:08:39] Speaker 03:
But that's a result of the sound engineering and planning that the Army Corps of Engineers did.

[00:08:44] Speaker 03:
The fact that there's a remote but catastrophic possibility.

[00:08:47] Speaker 02:
But you were aware that this remote incident was actually going to happen.

[00:08:53] Speaker 02:
It's not remote in that it's improbable.

[00:08:56] Speaker 02:
it's remote and maybe temporal in terms of time, it was going to happen.

[00:09:04] Speaker 02:
And then going back to the point to where it seems that the court was aware that flooding, that they had not bought enough property and that flooding was going to happen.

[00:09:23] Speaker 03:
So the meteorological data improved over the decades that the Corps was operating the project, but the Corps was not taking further action or constructing additions on the project.

[00:09:33] Speaker 03:
It would have to go to Congress to get authorization, whether to acquire additional land or to modify the project in some way that would accommodate both the upstream and the downstream properties.

[00:09:47] Speaker 03:
It couldn't make those modifications without additional congressional authorization.

[00:09:53] Speaker 03:
It's not going to be liable for inaction.

[00:09:55] Speaker 02:
Could you address damages?

[00:09:58] Speaker 03:
So I think the damages underscore the court's error in liability.

[00:10:02] Speaker 03:
The damages that we're disputing in our appeal relate to compensation for an assortment of consequential losses, a variety of items such as personal property that happened to be in the different homes at the time of the flooding,

[00:10:19] Speaker 03:
loss profits from rent when individuals couldn't rent the units that flooded, or discount on rent for an individual who remained in a second floor when the first floor was flooded.

[00:10:32] Speaker 03:
So it's just an assortment of compensation that really looks a lot more like tort compensation.

[00:10:38] Speaker 03:
And so I think the errors that we identify in the compensation award really underscore the fact that the court itself was more comfortable treating the losses as tort-like losses.

[00:10:49] Speaker 03:
where those types of incidentals and consequential values are more readily compensable.

[00:10:57] Speaker 03:
Getting back to that distinction between torts and takings and how the frequency plays into this,

[00:11:05] Speaker 03:
I think the frequency factor alone, I think, is determinative here.

[00:11:09] Speaker 03:
Certainly foreseeability can play a role in an Arkansas game and fish analysis.

[00:11:14] Speaker 03:
But when you look at all the different factors, I think the remoteness, the infrequency of this event, although it was planned for as an ultimate catastrophe,

[00:11:24] Speaker 03:
really is fatal to plaintiff's claim.

[00:11:26] Speaker 06:
As I said... And just to be clear, you think that the Arkansas kind of multi-factor analysis is the right framework, even on the assumption, which I know you dispute, that IDECR is right?

[00:11:44] Speaker 03:
So we think that we think this is not does not fall in the category.

[00:11:49] Speaker 03:
We see it occur as applying the inevitably recurring flooding that the Supreme Court identified in Crest.

[00:11:55] Speaker 03:
And this is not an inevitably recurring flood.

[00:11:58] Speaker 03:
I mean, it could occur again at some remote point in time.

[00:12:02] Speaker 03:
But plaintiffs put on no evidence at the liability stage of when that might occur, and the court made no findings as to that.

[00:12:08] Speaker 03:
So that's what I'd like to emphasize here.

[00:12:10] Speaker 03:
There's been no case that I've been able to uncover, either in my friend's papers or my own research, where the government has been responsible for compensation for a once in roughly 1,000 year flooding event.

[00:12:24] Speaker 01:
How, if at all, do your arguments differ based on the fact that these are upstream plaintiffs as opposed to downstream?

[00:12:30] Speaker 03:
So as I mentioned before, the downstream plan of, and I'm trying to be mindful of the fact that that case is ongoing, causation is really determinative there.

[00:12:40] Speaker 03:
If the project had not been built, the downstream properties would have flooded to a much greater degree.

[00:12:46] Speaker 03:
And if the core had

[00:12:48] Speaker 03:
operated the project to leave the gates open, for example, even that would have flooded the downstream properties, all to a much greater degree.

[00:12:56] Speaker 03:
So in those cases, our view is that causation is determinative.

[00:12:59] Speaker 03:
Not so for the upstream planets, where we think it's really the remoteness of the occurrence of the storm.

[00:13:07] Speaker 02:
You're into your rebuttal.

[00:13:09] Speaker 02:
Yes.

[00:13:09] Speaker 02:
I may reserve the rest.

[00:13:10] Speaker 02:
OK.

[00:13:11] Speaker 02:
Thank you.

[00:13:11] Speaker 02:
Thank you.

[00:13:15] Speaker 02:
Councillor Marzullo.

[00:13:17] Speaker 04:
I'm going to go first, Your Honor.

[00:13:20] Speaker 04:
Mr. Gershengorn.

[00:13:24] Speaker 04:
Good morning, Your Honors, and may it please the Court, Ian Gershengorn for the Miku Plaintiffs.

[00:13:30] Speaker 04:
The government designed, intended, and engineered the dams here to hold all of the water from a storm the size of Harvey and much, much more.

[00:13:39] Speaker 04:
All along, the government could have purchased the private land within the dam's reservoir, but it chose not to.

[00:13:44] Speaker 04:
deciding they would be cheaper to gamble that such a storm would not occur and that the reservoir would not be flooded.

[00:13:51] Speaker 04:
Then, when Harvey came, the dams worked exactly as they were intended, designed, and engineered to do, saving downtown Houston from being washed away, but flooding the private property behind the dams and in the reservoir.

[00:14:05] Speaker 04:
The Constitution permits the government to take private property in this manner for a public use.

[00:14:09] Speaker 04:
It just requires the government to pay.

[00:14:12] Speaker 04:
So Judge Torano, if I could turn to your question, I guess the way we see it is the way, not saying that you thought this, but the way suggested by your question, which is that the government's emphasis on frequency really has no application here for a couple of reasons.

[00:14:29] Speaker 06:
Including in the valuation?

[00:14:30] Speaker 04:
In the valuation, it does.

[00:14:32] Speaker 04:
Correct.

[00:14:32] Speaker 04:
In the liability, it's not.

[00:14:33] Speaker 04:
And we think that's exactly the way to think about it.

[00:14:36] Speaker 04:
So the thrust of the government's argument is that Harvey is this freak storm.

[00:14:40] Speaker 04:
And I want to make a couple of points

[00:14:42] Speaker 04:
First, in every relevant respect here, it is not a freak storm.

[00:14:46] Speaker 04:
The dam was designed and engineered to handle a Harvey-sized storm and much more.

[00:14:52] Speaker 04:
The elevation of the max pool above the dam, what they call the spillway design flood, was 115 feet above sea level.

[00:15:01] Speaker 04:
Harvey was 109 feet above sea level.

[00:15:04] Speaker 04:
And actually, the government's purchased land was 103 feet above sea level.

[00:15:08] Speaker 04:
So this was, from a Harvey storm perspective,

[00:15:11] Speaker 04:
not unexpected.

[00:15:12] Speaker 04:
And indeed, the fact findings from Judge Leto make that clear.

[00:15:15] Speaker 04:
He found, quote, the Army Corps itself fully anticipated a storm the likes of Harvey.

[00:15:21] Speaker 04:
That's in Appendix 31.

[00:15:25] Speaker 04:
And the judge found that this was highly likely to recur again.

[00:15:30] Speaker 04:
And so we think we meet the test.

[00:15:33] Speaker 04:
The reason that makes sense, Your Honor, is that there's a couple of key factual points, which I want to make.

[00:15:38] Speaker 04:
Although Harvey itself was massive and unprecedented, part of the reason for that is that it was such a big storm, and parts of the area got like 60 inches.

[00:15:48] Speaker 04:
But over the relevant watershed, over the dams, the flood was no bigger than the Hearn storm, which was the Design storm.

[00:15:56] Speaker 04:
for these things.

[00:15:58] Speaker 01:
Are you contending that the right framework is kind of the per se taking framework, or are you contending the right framework is the Arkansas game?

[00:16:04] Speaker 04:
So, Your Honor, we think that the per se framework is the right framework, though, per em, we win under the Arkansas game framework.

[00:16:11] Speaker 04:
But the reason why we think the per se framework is right is sort of twofold.

[00:16:15] Speaker 04:
One, we think that that's what this court held in Iderker Farms, that this is

[00:16:20] Speaker 04:
What the court said in Idicker Farms was, when it's foreseeably recurring flooding, it's a per se when the dams, quote, foreseeably produce intermittent invasions by flooding without identifiable end into the future.

[00:16:37] Speaker 04:
We think that's this case.

[00:16:38] Speaker 04:
We also think, related, that this actually is an easier case for the per se taking than Idicker Farms because it's upstream from the dam.

[00:16:47] Speaker 04:
I'm not aware of any case upstream from a dam

[00:16:50] Speaker 04:
where a court has applied the Arkansas game factors where the dam is still in existence.

[00:16:54] Speaker 04:
And in fact, this court's decision in Stockton makes this point expressly.

[00:16:58] Speaker 04:
It says when you build a dam and the flooding is upstream from the dam within the reservoir, within what the dam was engineered to do, even once is it taking as long as the dam is still there and the flooding could recur.

[00:17:11] Speaker 04:
And so we actually think this case is much easier.

[00:17:14] Speaker 04:
Now that said,

[00:17:15] Speaker 04:
If the court were to apply the Arkansas game factors, and I can run through them if you'd like, but we think when you look at the severity of the storm, it was three to five feet of water in some houses, fecal matter in the water, people displaced for months and years, so it was severe.

[00:17:31] Speaker 04:
The court found below that the houses were in the residences, these are residential properties, were within the maximum flood plain.

[00:17:39] Speaker 04:
The court found that the government could have purchased land, but used a different storm for its decision to purchase land, a much smaller storm, than it did to design the dam.

[00:17:50] Speaker 04:
The court found that at every relevant point, the government was aware, or should have been aware, since initial construction of the dams, and at every point forward,

[00:17:58] Speaker 04:
that the flood pools in Attic and Barker reservoirs would at some point and thereafter exceed the government-owned land inundating plaintiff's properties.

[00:18:06] Speaker 02:
So you would argue this is a per se taking?

[00:18:08] Speaker 04:
I would, Your Honor.

[00:18:09] Speaker 04:
I think this is a per se taking.

[00:18:10] Speaker 04:
I think that follows from Attic or Farms.

[00:18:12] Speaker 04:
I think it follows from Cedar Point.

[00:18:14] Speaker 04:
This is the recurring flood behind the dam.

[00:18:18] Speaker 04:
My counsel said

[00:18:19] Speaker 04:
it's not inevitably recurring.

[00:18:20] Speaker 04:
I think, Your Honor, you said it right, or I agree with the idea that this is inevitably recurring.

[00:18:26] Speaker 04:
We don't know whether it'll be tomorrow, a year from now, or 40 years from now, or 100 years from now.

[00:18:32] Speaker 04:
Although what the court found was it was highly likely to recur.

[00:18:36] Speaker 04:
And the reason he found that is because of the history of storms.

[00:18:39] Speaker 04:
And I can run through them all, but Your Honors are well aware.

[00:18:42] Speaker 04:
The Hearnstorm, the Taylorstorm, 25 and 39, Claudette, Allison.

[00:18:47] Speaker 06:
Can I ask you something different?

[00:18:48] Speaker 06:
Does any part of your argument depend on saying that the choices the Corps was facing and making during that four or five day period when it was deciding when to

[00:19:05] Speaker 06:
close the gates, when to open the gates, were unreasonable?

[00:19:10] Speaker 04:
No, Your Honor, we don't.

[00:19:11] Speaker 04:
In fact, that's the difference we think between a tort and a taking, that the government was authorized to do what it did, and in fact should have done what it did.

[00:19:23] Speaker 04:
That's what Congress told it to do, was to build a dam, to flood upstream properties, and save downtown Houston.

[00:19:30] Speaker 04:
They just have to pay for it.

[00:19:32] Speaker 04:
And indeed, sort of to make that point, I think even more clear, I'd like to just point to two quick things in the record, recognizing that I'm eating into my rebuttal time.

[00:19:39] Speaker 04:
But the quote, operating concept of the dams, this is the Corps' own language, was quote, imposing flooding on private lands without benefit of flow adjustments or other legal right.

[00:19:50] Speaker 04:
And that's at A8836.

[00:19:52] Speaker 04:
The Corps found in the after action report that the dams, quote, functioned as intended

[00:19:57] Speaker 04:
The project was performing as expected with no significant problems during this pool of record event.

[00:20:03] Speaker 04:
That's at A8762.

[00:20:04] Speaker 04:
So Your Honor, nothing in our view depends on the idea that the Corps acted reasonably or unreasonably.

[00:20:11] Speaker 04:
But the dam worked as it was supposed to.

[00:20:14] Speaker 04:
From the Corps' perspective, this was a good thing.

[00:20:17] Speaker 01:
And from the country's perspective.

[00:20:18] Speaker 01:
Could you briefly respond to the argument that there was a necessity here to do

[00:20:22] Speaker 01:
what they did.

[00:20:23] Speaker 04:
Sure, you are.

[00:20:24] Speaker 04:
And I'd like to make two factual points and then a legal point.

[00:20:28] Speaker 04:
The two factual points are, one, something I said, which was there wasn't really an emergency in the way we use emergency.

[00:20:38] Speaker 04:
Congress, in 1938, when it directed the court to build these things,

[00:20:42] Speaker 04:
said, what I want you to do is store water upstream on property.

[00:20:48] Speaker 06:
This is directly related to this.

[00:20:50] Speaker 06:
So you seem to use emergency as requiring a surprise.

[00:20:55] Speaker 06:
That's a surprising notion to me.

[00:20:58] Speaker 04:
So no, Your Honor, I think what I would say is that in the relevant, so maybe this goes to the legal point, but let me just say

[00:21:10] Speaker 04:
The lack of surprise.

[00:21:12] Speaker 04:
The dam was designed at congressional direction.

[00:21:18] Speaker 04:
But the dam was designed to hold this much and more.

[00:21:21] Speaker 04:
So we don't think that that could be an emergency.

[00:21:23] Speaker 04:
What dams are supposed to do is hold water in very big storms to prevent downstream people from being flooded.

[00:21:30] Speaker 04:
That's not an emergency.

[00:21:31] Speaker 04:
That's their very point.

[00:21:34] Speaker 04:
But if I could make a point on the legal side too, on this sort of emergency, because I think it's important.

[00:21:39] Speaker 04:
The analogy the government draws is to this fire coming.

[00:21:44] Speaker 04:
And the cases, the old cases that say that you can burn a house in the path of the fire to stop the fire.

[00:21:52] Speaker 04:
But there is no case that says, if the fire is coming, you can take a house that's outside the path of the fire, crash it down, take the bricks, and build a firewall without paying for it.

[00:22:03] Speaker 04:
No case says that.

[00:22:04] Speaker 04:
And in fact, Trinko from this court, or maybe a predecessor,

[00:22:08] Speaker 04:
But Trinko, binding precedent here, says exactly that, that a takings claim goes forward on a claim.

[00:22:14] Speaker 04:
In that case, it was a burning timber situation.

[00:22:16] Speaker 04:
And the plaintiff said, the fire was never going to reach my land, but the government burned my land.

[00:22:20] Speaker 04:
And what this court said is, that case gets to go forward.

[00:22:23] Speaker 04:
And so I don't think the emergency doctrine has any applications here.

[00:22:29] Speaker 04:
The other case is just for your honor's interest.

[00:22:30] Speaker 04:
I mean, Caltechs, the Supreme Court case, is exactly the same, right?

[00:22:34] Speaker 04:
There's the advancing Japanese army.

[00:22:36] Speaker 04:
The United States blows up a petroleum factory in the wake of the advancing army.

[00:22:42] Speaker 04:
The court says, no taking.

[00:22:44] Speaker 04:
The army was coming.

[00:22:45] Speaker 04:
But the court says, if you instead had seized that petroleum factory and operated it in the war, of course you'd have to pay for it.

[00:22:54] Speaker 04:
And it's the same distinction here.

[00:22:56] Speaker 04:
So I don't think that emergency

[00:22:58] Speaker 04:
gets the government anywhere.

[00:22:59] Speaker 04:
I'm sorry, Your Honor, did you have?

[00:23:02] Speaker 00:
I'm into my own.

[00:23:03] Speaker 04:
OK, thank you, Your Honors.

[00:23:13] Speaker 05:
May it please the Court, Roger Marzula, appearing on behalf of Christine and Todd Banker, whose property flooded to a depth of more than a foot and who spent several hundred thousand dollars

[00:23:27] Speaker 05:
repairing the structure and were excluded from their property for months and months as a result.

[00:23:33] Speaker 05:
And on behalf of Elizabeth Burnham, who was unable to repair her home and ended up ultimately selling it at a huge loss as is.

[00:23:47] Speaker 05:
I'd like to address a couple of points.

[00:23:49] Speaker 05:
First, some fact points.

[00:23:52] Speaker 05:
Council says the plaintiffs did not introduce any evidence on the question of recurrence.

[00:23:57] Speaker 05:
I point the court to appendix 52, in which the court describes the testimony of Dr. Mediant, a plaintiff's expert, that the recurrence is 35 to 50 years and possibly 100.

[00:24:17] Speaker 05:
And to the testimony of a core employee, Mario, I believe it was

[00:24:25] Speaker 05:
or something like that, who said that new information had become available and that in fact he thought that that indicated 10 to 35 years as the recurrence time.

[00:24:37] Speaker 05:
That evidence is in the record.

[00:24:40] Speaker 02:
Recurrence of what?

[00:24:42] Speaker 05:
Recurrence of a storm similar to Harvey.

[00:24:46] Speaker 05:
To Harvey?

[00:24:47] Speaker 05:
Yes, that's the testimony.

[00:24:50] Speaker 05:
And the court

[00:24:51] Speaker 05:
And this is sort of my next point.

[00:24:54] Speaker 05:
There's a phrase we didn't hear from the government.

[00:24:57] Speaker 05:
And that is clearly erroneous.

[00:25:00] Speaker 05:
The court did say that recurrence.

[00:25:04] Speaker 02:
Let me get something clear.

[00:25:05] Speaker 02:
Harvey was the largest storm recorded to date when it came.

[00:25:10] Speaker 05:
Well, recorded at that time.

[00:25:12] Speaker 02:
In terms of the 44 inches of rain that had dropped on this, on the Buffalo Flood in easement.

[00:25:20] Speaker 05:
Yes, and the trial court also says that Esmeralda, two years later, was the same size as Harvey.

[00:25:29] Speaker 05:
So this largest, I also don't know, it was unclear to me in reading the opinion, what largest actually meant.

[00:25:37] Speaker 05:
Does it mean how broad it was?

[00:25:42] Speaker 05:
How much rain it dropped in a particular place?

[00:25:46] Speaker 05:
How quickly it dropped the rain?

[00:25:48] Speaker 05:
In short, largest, I'm afraid, Your Honor,

[00:25:51] Speaker 05:
is a term that's a little bit ambiguous for us.

[00:25:56] Speaker 02:
That's up to you to define and argue.

[00:26:00] Speaker 05:
Well, what I'm saying is the term largest was used at one point, but not that it was different from in terms of the water it produced.

[00:26:13] Speaker 05:
different from the prior storms.

[00:26:16] Speaker 06:
But do I understand, or you just want to focus on the, I don't know, quite, in a way, simple physical fact, enough water that when it builds up behind the dam, it will exceed the government-owned land and reach your land?

[00:26:33] Speaker 05:
Correct, Your Honor.

[00:26:34] Speaker 05:
And in fact, the tax day storm 2016, the year before Harvey, also exceeded the government-owned land.

[00:26:43] Speaker 05:
That is, there's no question that the government intended to flood private property.

[00:26:52] Speaker 05:
They built a project intending to flood private property at some time, and perhaps they were lucky that that didn't happen.

[00:27:00] Speaker 05:
But I go back to that clearly erroneous, because the court found that this was likely to recur.

[00:27:09] Speaker 05:
And the government has not

[00:27:13] Speaker 05:
presented to this court any argument that suggests that even addresses the court's actual findings.

[00:27:19] Speaker 05:
Rather than going back, the counsel said, well, it's a 1,000-year flood.

[00:27:24] Speaker 05:
That's what their expert said.

[00:27:27] Speaker 05:
And that testimony was not accepted by the trial court.

[00:27:31] Speaker 05:
That's a clearly erroneous issue.

[00:27:33] Speaker 05:
It's not a matter for this court, in the first instance, to be put to having to test that testimony.

[00:27:41] Speaker 05:
The other topic I'd like to discuss is damages, which the court raised.

[00:27:48] Speaker 05:
Counsel was pretty fast and loose with the term consequential.

[00:27:53] Speaker 05:
The definition of consequential, of course, is, or put another way, the line between direct and consequential damages in a taking case.

[00:28:06] Speaker 05:
is whether there is a direct relationship between the owner and the property.

[00:28:12] Speaker 05:
Well, the property interests here include not only the land, they include the houses that these people lived in.

[00:28:21] Speaker 05:
They include the personal property that people use, their furniture, their clothing, their appliances, and so forth.

[00:28:30] Speaker 05:
And they include the

[00:28:35] Speaker 05:
direct loss of use of the property, called displacement, awarded by the United States Supreme Court in cases like General Motors and Kimball Laundry, where the government physically moved in and the plaintiff had to move out and had to go somewhere else.

[00:28:56] Speaker 06:
And so the damages there, you say, included, essentially, costs incurred when they went somewhere else?

[00:29:04] Speaker 05:
Yes, that's right, Your Honor.

[00:29:06] Speaker 05:
General Motors was a parts warehouse.

[00:29:10] Speaker 05:
And they had to pick up and move all their parts out of the warehouse for the government.

[00:29:16] Speaker 05:
That was held to be a recoverable cost, because it's directly related to the property interest taken.

[00:29:24] Speaker 05:
That's what the Fifth Amendment, of course, is all about, compensating for the property that has been taken by the government.

[00:29:33] Speaker 06:
Can I ask you a damages related question?

[00:29:35] Speaker 06:
And I'm not entirely sure whether it's in your bailiwick.

[00:29:40] Speaker 06:
I know you don't have a cross appeal.

[00:29:42] Speaker 06:
But so I want to understand what

[00:29:48] Speaker 06:
the following.

[00:29:49] Speaker 06:
So there's been compensation for the flowage easement, discounted presumably by the likelihood of that.

[00:29:59] Speaker 06:
There's also been compensation for harm physical, personal property and other things that has already occurred.

[00:30:12] Speaker 06:
On the assumption which that this will in fact happen again When the house or the personal property is damaged again, is there more compensation at that point?

[00:30:27] Speaker 05:
Probably not your honor Although I might make a different argument, right?

[00:30:33] Speaker 06:
I think I think there's a footnote in the gray brief the report

[00:30:39] Speaker 06:
the reply on the cross-appeal that says you don't have to decide that here.

[00:30:43] Speaker 06:
But I'm curious how that sort of, you know, I think, note number two.

[00:30:48] Speaker 05:
Yeah, I think once your property is subject to a flooding easement, you're not going to have a claim for losses resulting from the exercise of that flooding easement.

[00:31:01] Speaker 05:
So that's why it is a one-time, one-shot thing the government has here.

[00:31:10] Speaker 05:
acquired the right by way of the physical invasion of the plaintiff's fee ownership, their right to exclude, their right of use, their ownership of these various interests, the land, the structures, the personal property, the automobiles, the landscaping, and so forth.

[00:31:38] Speaker 05:
And once the government acquires that, and it's a recorded easement in this case, there won't be additional compensation, I think.

[00:31:48] Speaker 05:
I would also just like to make a comment about the so-called emergency.

[00:31:54] Speaker 05:
The court, again, dealt with that and said, and I think the court sort of explored that issue, that this is an emergency created by the government, a circumstance created by the government.

[00:32:07] Speaker 05:
That is, they built the dams.

[00:32:09] Speaker 05:
They impounded the water.

[00:32:12] Speaker 05:
And as the court sort of put it, they built a project that was meant to contain more water than the acquired land could hold.

[00:32:24] Speaker 05:
That was the plan.

[00:32:25] Speaker 05:
It operated exactly as they intended it to.

[00:32:29] Speaker 05:
They set forth in their 2012 manual, this is how we're going to do it.

[00:32:32] Speaker 05:
We're going to flood these people's land.

[00:32:34] Speaker 05:
when we have that much water backed up behind the dam.

[00:32:40] Speaker 02:
I think we had that part of the government argument, and you're out of time.

[00:32:45] Speaker 02:
Thank you, Your Honor.

[00:32:45] Speaker 02:
Yes.

[00:32:47] Speaker 02:
Are we going to hear now?

[00:32:49] Speaker 02:
You're going to address?

[00:32:50] Speaker 02:
All right.

[00:32:52] Speaker 05:
Go ahead.

[00:32:52] Speaker 05:
Yes, I think I have completed.

[00:32:54] Speaker 05:
Thank you, Your Honor.

[00:33:03] Speaker 03:
So starting first with my friend for the Mickey Planoffs and Cross Appellants, made the point that because the storm occurred upstream, this was much easier.

[00:33:14] Speaker 03:
And their argument for that relies on a case called Stockton from the Court of Claims.

[00:33:19] Speaker 03:
This court's predecessor.

[00:33:21] Speaker 03:
Our point about Stockton, which we make in the brief, is that the government there conceded that there was a return frequency

[00:33:27] Speaker 03:
of the flooding once every, I believe it was eight or nine years.

[00:33:32] Speaker 03:
And the flooding was not just once.

[00:33:34] Speaker 03:
It was once, and then it was approximated a couple more times within a year or so.

[00:33:38] Speaker 03:
And that was within eight or nine years of when the dam was initially built.

[00:33:42] Speaker 03:
So it's far more frequent than even under my friend's best estimates as to when a similar flood would recur here.

[00:33:52] Speaker 03:
So as to the severity issue, the court has described that in terms of frequency, as I mentioned with the Ridgeline excerpt.

[00:34:03] Speaker 03:
And it's not a case where you look at the severity of damage to the property to determine whether it's a taking or a tort.

[00:34:11] Speaker 03:
Obviously, Hurricane Harvey was a catastrophe and devastated the victims who lost their homes and, in many cases, lives.

[00:34:19] Speaker 03:
But to determine whether the compensation for the

[00:34:23] Speaker 03:
property invasion is a tortor taking, you look to the character of the invasion.

[00:34:28] Speaker 03:
So that entails an inquiry into frequency.

[00:34:31] Speaker 06:
Can I just ask a kind of background question?

[00:34:33] Speaker 06:
If this had been a trespass, am I right in thinking the government would not be liable either in the Federal Tort Claims Act or under the no liability provision of the 1928 or something Flood Control Act?

[00:34:46] Speaker 03:
We would certainly make those arguments that we're immune

[00:34:49] Speaker 03:
And that's Congress's decision.

[00:34:50] Speaker 03:
I mean, we view that as Congress's prerogative, whether to adjust that compensation to allow for, you know, if it wanted to adjust the government sovereign immunity to tort, it would be Congress's prerogative to do so.

[00:35:02] Speaker 02:
And that kind of leads into the Flood Control Act question, which... Do you have a case that supports the statement on damages you just made?

[00:35:18] Speaker 03:
Well, the Robinson case, which was the companion to the Katrina litigation that was at issue in St.

[00:35:24] Speaker 03:
Bernard Parish, it was a Fifth Circuit case that's probably cited in the St.

[00:35:29] Speaker 03:
Bernard Parish case where the government prevailed on the discretionary function exception for Federal Tort Claims Act and also made the Flood Control Act immunity argument.

[00:35:40] Speaker 03:
So that ties into the questions about necessity doctrine and the emergency.

[00:35:46] Speaker 03:
which we think are background principles here that can be and ought to be used to construe plaintiff's reasonable expectations.

[00:35:54] Speaker 03:
We agree, Judge Teran, with the implication of your question that an emergency does not need to be a surprise.

[00:36:01] Speaker 03:
Sound engineering plans for remote but potentially catastrophic events like dam failure and makes adjustments in order for Congress to have

[00:36:14] Speaker 03:
authorized the Corps of Engineers to embark upon the nationwide flood control program that it did through the Flood Control Act that included this project.

[00:36:23] Speaker 03:
It understood.

[00:36:24] Speaker 03:
In fact, the legislative history cites a case from the Supreme Court called Bedford that said that consequential damages were not compensable as a taking.

[00:36:35] Speaker 03:
And then it went on with that understanding that there wouldn't be that sort of consequential liability in taking to immunize the government from tort liability from flooding as well.

[00:36:43] Speaker 03:
So it was with that view in mind that Congress embarked upon this effort that's resulted in this project, and among many more across the nation.

[00:36:54] Speaker 03:
I know I'm out of time.

[00:36:55] Speaker 03:
Just if I could respond briefly to a point from my friend from the Bankers Burnham plaintiff's appellees.

[00:37:03] Speaker 03:
He mentions the evidence in the record about frequency that he pointed to in a footnote from the liability opinion, regardless of what evidence was presented

[00:37:13] Speaker 03:
It was incumbent upon the trial judge to make a finding, and he did not do so.

[00:37:18] Speaker 03:
He didn't do so at the liability stage.

[00:37:20] Speaker 03:
He didn't do so at the valuation stage either.

[00:37:23] Speaker 03:
He rejected both parties' evidence at the valuation stage expressly, and that was error.

[00:37:30] Speaker 03:
On the losses and damages question,

[00:37:32] Speaker 03:
We stand by our argument that the way to compensate for the acquisition of a property interest that's an easement is to look at the value of the underlying fee before and after the date of taking.

[00:37:44] Speaker 03:
That was what the court should have relied upon here instead of compensating for a miscellany of other losses that were more tort-like in their nature.

[00:37:53] Speaker 03:
So we would ask the court's judgment be reversed.

[00:37:59] Speaker 02:
We've got two minutes.

[00:38:00] Speaker 04:
Thank you, Your Honor.

[00:38:01] Speaker 04:
And I'm limiting myself to the cross-appeal issues.

[00:38:04] Speaker 04:
So I want to make a couple of quick points.

[00:38:06] Speaker 04:
First, for Ms.

[00:38:07] Speaker 04:
Papavici, this was the one where the court found a taking.

[00:38:11] Speaker 04:
The easement is recorded on her land, and the court rewarded zero damages, even though both experts, even the government's expert, conceded that the damages were in the thousands.

[00:38:21] Speaker 04:
I urge the court to look at page 811A11425 for a picture of Ms.

[00:38:29] Speaker 04:
Papavici's land.

[00:38:30] Speaker 04:
The water covers 56% of her property.

[00:38:35] Speaker 04:
Zero just can't be the right answer.

[00:38:37] Speaker 04:
And it's important because there actually are hundreds or even thousands of people on that contour line.

[00:38:42] Speaker 04:
And so the idea that none of those people get compensation just because the water flooded their property but touched their structure seems indefensible.

[00:38:52] Speaker 04:
Second, class action.

[00:38:55] Speaker 04:
This case should not be another win star, right?

[00:38:58] Speaker 04:
This is a case that on the liability side.

[00:39:01] Speaker 06:
Would I be surmising correctly that the difference between a class action here, if you were to get it, and a class action in the next case

[00:39:12] Speaker 06:
is the resolution of all these factual issues would be binding, whereas in the next case, there's no non-mutual collateral stoppable against the government.

[00:39:20] Speaker 04:
Correct, Your Honor.

[00:39:21] Speaker 04:
And so the problem is, this sort of goes to, I think, the main point here, which is the government, we think the class motion was timely.

[00:39:31] Speaker 04:
But regardless, there was no prejudice to the government.

[00:39:33] Speaker 04:
This case was tried on a pool-wide basis with pool-wide experts, pool-wide testimony.

[00:39:38] Speaker 04:
It's only a liability class.

[00:39:39] Speaker 04:
We're not talking about individual damages.

[00:39:41] Speaker 04:
And so the idea that the right answer here is to go back and do this again potentially for 150,000 plaintiffs, like to bring in the same experts to testify that Harvey dropped only 31 inches of water on this watershed, even though it was 44 inches wide.

[00:39:59] Speaker 06:
One more question about that.

[00:40:03] Speaker 06:
Your brief seems to be arguing that you were

[00:40:07] Speaker 06:
something like compelled to delay the filing.

[00:40:13] Speaker 06:
Is that an essential part of your argument, as opposed to justified by what sure sounded like permissions?

[00:40:21] Speaker 04:
I think it's really the latter, Your Honor.

[00:40:23] Speaker 04:
So our view is the court, both Chief Judge Braden and Judge Leto, basically said, do class cert after

[00:40:30] Speaker 04:
after jurisdiction.

[00:40:31] Speaker 04:
In theory, we could say, notwithstanding, Your Honor, notwithstanding the fact that you're going to try our case, we're ignoring you and putting in a motion you told us not to do.

[00:40:39] Speaker 04:
It puts lawyers in a very difficult position.

[00:40:41] Speaker 04:
But our main point is, regardless of that, given that permission, there's no categorical bar on certifying a liability class after the merits and no prejudice to the government.

[00:40:52] Speaker 04:
It was asked at every stage in our briefs.

[00:40:54] Speaker 02:
But the problem with that is that you're asking us to have

[00:40:57] Speaker 02:
claims court direct the litigation on behalf of the parties.

[00:41:02] Speaker 02:
I mean, the timing for a motion to certify a class is essential and very foundational, and you just, you didn't do it.

[00:41:13] Speaker 02:
I mean, you're claiming that, well, the court told us not to or they had us wait, but it should have been your responsibility to have

[00:41:22] Speaker 02:
have followed the motion.

[00:41:24] Speaker 02:
Yes, I understand that.

[00:41:25] Speaker 04:
A couple of quick points that I get your honest point.

[00:41:28] Speaker 04:
So all I would say is they told us to do it after jurisdiction.

[00:41:31] Speaker 04:
We did after jurisdiction.

[00:41:32] Speaker 04:
Our second point is regardless, there's no prejudice.

[00:41:35] Speaker 04:
to the government here at all.

[00:41:37] Speaker 04:
And third, and maybe at the end of the day, this is in a footnote.

[00:41:41] Speaker 02:
But there's something wrong in certifying a class after liability has been.

[00:41:44] Speaker 04:
So I think that's right, Your Honor.

[00:41:46] Speaker 04:
And we get that the courts are hesitant to do that.

[00:41:48] Speaker 04:
But we don't think there's a categorical bar.

[00:41:50] Speaker 04:
And in a situation where there's no prejudice to the government and obvious synergies for the court of federal claims, we think that's important.

[00:41:58] Speaker 04:
But if I could just make one more point on this and then move on quickly to FEMA, and then I'll stop.

[00:42:03] Speaker 04:
We say this in a footnote.

[00:42:04] Speaker 04:
What's very important is, even if you don't agree with us, that nothing in the opinion, or that you make clear, that subsequent plaintiffs can move to certify a class.

[00:42:16] Speaker 04:
So in other words, even if these plaintiffs don't, that a subsequent plaintiff could move to certify a class and have this proceed in a sensible manner.

[00:42:24] Speaker 04:
So we think that it should be reversed.

[00:42:26] Speaker 04:
But if not, it's certainly not foreclosed for the other 140,000, 50,000 plaintiffs.

[00:42:33] Speaker 04:
Last point on FEMA, very quickly.

[00:42:35] Speaker 04:
The Handler Special Benefits Test is not met by FEMA.

[00:42:38] Speaker 04:
Judge Leto was bothered by the prospect of double recovery, so I want to make one clear point.

[00:42:43] Speaker 04:
There is nothing in the record that suggests a double recovery by any of the plaintiffs here.

[00:42:50] Speaker 04:
And the reason for that is the government chose to introduce the FEMA offsets as a category, not individualized.

[00:42:57] Speaker 04:
So there is no record of a single person getting double recovery from FEMA

[00:43:02] Speaker 04:
and from the request for personal property.

[00:43:08] Speaker 04:
And the reason for that is the government chose that.

[00:43:10] Speaker 04:
So we think the law doesn't, the FEMA offsets don't count under Händler as a special benefit.

[00:43:15] Speaker 04:
But even if this court were to extend Händler, there is no reason to do so here when the record shows no double recovery, if the court has no questions.

[00:43:25] Speaker 02:
Thank you.

[00:43:25] Speaker 02:
We thank the party for their arguments.