Free Response to Motion [Dispositive] - District Court of Federal Claims - federal

Case 1:07-cv-00014-MMS

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Karen Budd-Falen BUDD-FALEN LAW OFFICES, LLC 300 East 18th Street Post Office Box 346 Cheyenne, W yoming 82003­0346 (307) 632-5105 Telephone (307) 637-3891 Facsimile [email protected] Attorney for Plaintiffs

ELECTRONICALLY FILED ON 09/05/07

IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE RICHARD A. FORSGREN REVOCABLE LIVING FAMILY PRESERVATION TRUST: CLAYTA FORSGREN, RICHARD A. FORSGREN, RICHARD E. FORSGREN, TERRI LYNN HAGER, and BARBARA ANN THOMPSON, TRUSTEES, Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 07-14L PLAINTIFFS' RESPONSIVE SUPPLEMENTAL BRIEF
Honorable Margaret M. Sweeney

COME NOW, the Plaintiffs, by and through their undersigned attorney, Karen Budd-Falen of the Budd-Falen Law Offices, LLC, and hereby respectfully submits its responsive supplemental brief in opposition to the Defendant's pending motion to dismiss. It is the Plaintiffs' position that the recent decision of the United States Court of Federal Claims in Nicholson v. United States , No. 05-1259L, 2007 WL 2206857 (Fed. Cl. July 27, 2007), is not applicable to the facts of this case and does not directly address the issues before this Court.

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I.

THE RULING IN NICHOLSON V. UNITED STATES In Nicholson v. United States, the plaintiffs brought a class action suit alleging a

taking under the Fifth Amendment when their homes were inundated by nine to ten feet of water following a breach of the levee system in New Orleans due to Hurricane Katrina. See Nicholson v. United States, No. 05-1259L, 2007 WL 2206857, at *8 (Fed. Cl. July 27, 2007). The plaintiffs alleged that the levee system in New Orleans was both defectively designed and constructed, and was maintained improperly. See id. Specifically, the plaintiffs in Nicholson argued that the failure of the Army Corp of Engineers (hereinafter "Corps") to rebuild or replace the levee system so that it could withstand a Category 5 hurricane constituted a taking under the Fifth Amendment of the United States Constitution. See id. at *11. The plaintiffs further argued the property damage which they suffered was attributable to an ineffective system which the Corps should have known was defective and would result in a disaster should a Category 5 hurricane occur. See id. at *8. The United States Court of Federal Claims analyzed the plaintiffs' claims under the Takings Clause of the Fifth Amendment, but first noted that with regards to takings claims that arise due to flooding there is often a fine line in determining whether the action arises in tort or as a taking. See id. at *13. According to the court, "the takings doctrine has traditionally extended only to cases of inundation or intermittent overflows that result from the government's control, intended or unintended, over water." See id. Furthermore, the "flooding must result in sustained and substantial damage ­ if not permanent flooding, then at the very least it must result in a `permanent liability to

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intermittent but inevitably recurring overflows.'" See id. at *14. The flooding must be sufficiently frequent in order to constitute a taking. See id. Specifically, in Nicholson, the court applied the two part takings test established by the Federal Circuit in Ridge Line, Inc. v. United States, 346 F.3d 1346 (Fed. Cir. 2003). See Nicholson at *14-*18. However, in Nicholson, the court noted that the "injury complained of here does not fit the standard model of government-induced flooding, which led to the development of this branch of takings jurisprudence." See id. at * 14 (emphasis in original). Ultimately, the court concluded that the plaintiffs' claims did not rise to the level of a taking. See id. at *24. Specifically, the court held that the plaintiffs failed to establish that the damage caused by the flooding was the natural and probable consequence of the Corp's action or inaction. See id. "Rather, the flooding was the result of the hurricane. Put quite simply, the construction of the floodwalls did not cause the flooding: the flooding was caused by the storm surge." See id. at *15. In other words, in Nicholson, there was no indication that either the hurricane, the storm surge, or the flood waters, were conditions initially set in motion by the construction of floodwalls, thus it would not follow that the flooding was "directly attributable" to the Corps' protective measures, as opposed to the severe nature of the storm. See id. at *16. Additionally, in Nicholson, the plaintiffs failed to allege that a flood of the type that damaged their property will ever inevitably occur again. See id. at *17. "In the case of Hurricane Katrina, we have a unique and isolated atmospheric phenomenon which caused unprecedented flooding." See id. Since the flooding occurred as a result of a random event induced more by an extraordinary natural phenomenon and not as a result of the construction of the levees or failure to maintain the levees, the 3

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government's actions or inactions did not rise to the level of a compensable taking. See id. at *21-*22. II. THE DECISION OF THE COURT OF FEDERAL CLAIMS IN NICHOLSON V. UNITED STATES DEMONSTRATES THAT GOVERNMENT INACTION CAN FORM THE BASIS OF A TAKING CLAIM IN SPECIFIC CONTEXTS The decision of the Court of Federal Claims in Nicholson v. United States is distinguishable from the current claims before this Court in that the takings claim advanced by the plaintiffs in Nicholson focused not only on the government's failure to maintain the levee system, but also on the fact that the levee system as designed was defective. See id. at *8. Those are not the Forsgren's claims in this case. For example, in claim two of the case at bar, the Plaintiffs are not claiming that the subsurface drain was defective as designed or constructed, but rather that the government's failure to maintain the drain in proper working order, after having been notified and deliberately refused to correct the problem, caused the flooding on the Plaintiffs' property. See Complaint ¶¶ 99-101. Moreover, in the case at bar, there are no random or isolated atmospheric phenomenons which caused the flooding of the Plaintiffs' property; rather, the flooding on the Plaintiffs' property absolutely was the "direct, natural, or probable result" from the Government's failure to first remedy the original flooding of Plaintiffs property and separately its failure to maintain the subsurface drain. See id. at ¶¶ 87 and 102. In this case, the flooding on Plaintiffs' property is the direct result of the recharging of the CCC Ponds and then from the failure of the Defendant to take affirmative action or to fix or maintain the subsurface drain. See id. at ¶¶ 87 and 101.

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III.

ANALYSIS OF THE CASE AT HAND UNDER RIDGE LINE INC. v. UNITED STATES The court in Nicholson specifically analyzed the plaintiffs' claim under Ridge

Line, Inc. v. United States, and ultimately found that the Nicholson claims did not satisfy the two prong test for a taking established by Ridge Line. See id. at *14-*18. Under the first prong of Ridge Line analysis, a property loss compensable as a taking only results when "the government intends to invade a protected property interest or the asserted invasion is the `direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action.'" See id. Nicholson at *14, quoting Ridge Line v. United States, 346 F.3d at 1355-1356. Under the second prong, the court must consider the nature and magnitude of the government action. See id. citing Ridge Line at 1356. The court in Nicholson stated, however, that Ridge Line had little bearing to Nicholson and was distinguishable, because Nicholson involved a single event, and flooding as a result of a hurricane was not of the type of "government induced" flooding that Ridge Line was meant to address. See id. Under the first prong of Ridge Line, the court in Nicholson distinguishes Ridge Line on the ground that the flooding was not the direct, natural, or probable result of the government's construction or maintenance of the flood protection system, and additionally, that the government could not have foreseen nor predicted the resulting injury. See id. at *15. It was not that the failure of the levees caused the flooding, but rather that the hurricane and resulting storm surge caused the flooding. See id. In contrast, in the Forsgren case, the flooding on their property is the direct, natural and

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probable result of the federal government's recharging and refilling of the CCC Ponds located above the Forsgren's property. Under the second prong, the Court in Nicholson again distinguishes Ridge Line on the ground that since the flooding was singular and isolated, it does not amount to a compensable taking. See id. at *17. To constitute a taking, the flooding must be both substantial and frequent enough to rise to the level of a compensable taking. See id. In contrast the current claims before this Court involve intermittent flooding induced first by the government's reconstruction and recharging of the CCC Ponds and second through its deliberate failure to maintain a subsurface drain. This case is therefore more analogous with Ridge Line than Nicholson. The government's recharging of the CCC Ponds and it's failure to maintain the subsurface drain, especially after having been notified and deliberately refusing to correct the problem, was the direct, natural or probable cause of the injury and this type of injury was foreseeable, satisfying the first prong under Ridge Line. See Complaint ¶¶ 83, 87, and 102. Also, the recurring flooding on the Forsgren property is not the result of a natural phenomenon, such as a hurricane or storm surge, but rather from deliberate government action or inaction. See id. at ¶ 101. Additionally, the flooding that has occurred in this case as a result of both the recharging of the CCC Ponds and of the failure to maintain the subsurface drain has not occurred once, but rather has been a frequently and inevitably recurring event, thus is sufficient to rise to the level of a compensable taking, satisfying the second prong under Ridge Line. See Plaintiffs' Complaint at ¶¶ 85, 88, and 100.

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IV.

ANALYSIS OF THE CASE AT HAND UNDER COLLIER v. CITY OF OAK GROVE Most significant in Nicholson, however, is the court's discussion of weighing the

public need against the gravity of private harm. This includes a consideration of the risks that are likely to materialize, deliberate action which contradicts policy, and an unreasonable plan of maintenance. See Nicholson at *20. Specifically, the court, in its analysis, distinguishes Nicholson from Collier v. City of Oak Grove, 2007 WL 1185982 (Mo. Ct. App. Apr. 24, 2007), on the ground that the inaction that was the center of the takings claim in Collier contrasted the facts of the case before it. In Collier, a government maintained sewer system caused a backup in the plaintiff's basement. See Nicholson at *20. The plaintiffs notified the City after the first incident, but the City failed to take action to repair the sewer. See id. The City's liability was premised on its failure to repair the sewer system after being informed of the damage to the plaintiff's basement. See id. The facts in Collier are more analogous to this case in that both situations involved a governmental failure to maintain government property after being informed of its effect on private property. There was no allegation in Nicholson that the Corps failed to take protective measures to repair or rebuild the floodwalls, prior to Hurricane Katrina, based on some kind of notification from the plaintiffs that the floodwalls were defective in some manner. In contrast, in this case, the failure of the government to take protective measures, after having been informed of flooding of plaintiff's property due to both the CCC ponds and the failed structure, is a deliberate act resulting in a compensable taking. See Complaint ¶¶ 85-88 and 100-102.

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Finally, the court in Nicholson determined that the design of the floodwalls did not evidence a governmental intent to convert the plaintiffs' property to a public use. See id. at *21. However, in this case, the government has obviously exercised dominion and control over the Plaintiffs' privately-owned property. The flooding from the CCC ponds and the failure of the subsurface drain were not random events nor were they caused by an extraordinary natural phenomenon. Rather, the government likely knew that its affirmative conduct in recharging the CCC Ponds and subsequently refusing to maintain the drain would result in the flooding of the Plaintiffs' property. See Complaint ¶¶ 100-103 . The resultant damage to the Plaintiffs' property is substantial and constitutes a permanent infringement of the Plaintiffs' use and enjoyment of their privately-owned property. See Id. at ¶¶ 90-96 and 104. V. CONCLUSION Therefore, the decision in Nicholson does not support the Defendant's arguments, but rather demonstrates that government inaction can constitute the underlying basis of a compensable takings claim when the consequence was a foreseeable result of the government's inaction. RESPECTFULLY SUBMITTED this 5th day of September, 2007. /s/ Karen Budd-Falen__ Karen Budd­Falen Budd­Falen Law Offices, LLC 300 East 18th Street Post Office Box 346 Cheyenne, Wyoming 82003­0346 (307) 632­5105 Telephone (307) 637­3891 Facsimile [email protected] Attorney for Plaintiffs 8

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CERTIFICATE OF SERVICE I, the undersigned, certify that I caused a true and correct copy of the foregoing to be electronically transmitted on this 5th day of September, 2007 to the following: Bruce K. Trauben Trial Attorney Natural Resources Section Environment & Natural Resources Division United States Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 [email protected]

/s/ Karen Budd-Falen__

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