Free Supplemental Brief - District Court of Federal Claims - federal

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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 ) ) ) ) ) ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ________________________________________ )

No. 07-14L Hon. Margaret M. Sweeney

DEFENDANT'S SUPPLEMENTAL BRIEF PURSUANT TO THE COURT'S ORDER OF AUGUST 15, 2007 Pursuant to the Court's Order of August 15, 2007, Defendant, the United States, hereby submits its supplemental brief in support of its pending motion to dismiss, explaining the applicability of Judge Lawrence M. Baskir's recent decision in Nicholson v. United States, No. 05-1259L, 2007 WL 2206857 (Fed. Cl. July 27, 2007), to the facts of this case. On August 7, 2007, Defendant filed a Notice of Supplemental Authority, bringing to the Court's attention Judge Baskir's recent decision in Nicholson. Without presenting argument, Defendant indicated that the decision in Nicholson "addresses the question of whether government inaction can form the basis for a takings claim." In Section A of this Supplemental Brief, we summarize Nicholson and then, in Section B, explain how it relates to the facts and issues in this case.

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A.

Nicholson v. United States Shows that Government Inaction Cannot Form the Basis of a Takings Claim

In Nicholson, the plaintiffs brought a purported class action seeking compensation for alleged takings arising out of flooding caused by Hurricane Katrina.1/ Nicholson, supra, at *8. Two of the three named plaintiffs claimed that their homes in New Orleans were inundated by 9 to 10 feet of water. Id. While the third plaintiff claimed injury in the lost value of her property "due to the public recognition of the defectively designed floodwalls and the lack of safety from future floods," her property was not physically damaged by the flood waters. Id. Important for this discussion, "[t]he primary basis of each of the three claims is that the flood control system in New Orleans was defectively designed and constructed and was maintained improperly by the Defendant[]." Id. (emphasis added). At oral argument, it was made clear that "[p]laintiffs' Fifth Amendment claims . . . merely allege that the protection the Corps of Engineers sought to provide by installing floodwalls in support of the existing levees proved inadequate." Id. at *19. After finding that plaintiffs' claims do not satisfy the two prong test for takings actions under Ridge Line, Inc. v. United States, 346 F.3d 1346 (Fed. Cir. 2003) (see id. at *14-*18), the court then examined the character of the government's invasion. Id. at *18. As the court noted, "[b]eyond failing the Ridge Line test . . . the [p]laintiffs' cause of action cannot satisfy the most basic requirements of a governmental taking for a public purpose." Id. Specifically, the plaintiffs in Nicholson alleged that "`the decision not to rebuild and/or replace the levee system to withstand a Category 5 hurricane' gives rise to their Constitutional entitlement." Id. (italics as

Hurricane Katrina, the resultant flooding, and background information on the canals, levees and floodwalls that were intended, but failed, to protect New Orleans are discussed at length in Nicholson, 2007 WL 2206857 at *2-*7. -2-

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in original). However, "[i]n no case that [the Court] know[s] of has a governmental agency's failure to act or to perform its duties correctly been ruled a taking." Id. As the court made clear, "[it] has consistently required an affirmative action on the part of the Government to form the basis of the alleged taking." Id. (citing Last Chance Mining Co. v. United States, 12 Cl. Ct. 551, 556-57 (1987); B&G Enter., Ltd. v. United States, 43 Fed. Cl. 523, 526-27 (1999); Pendleton v. United States, 47 Fed. Cl. 480, 485 (2000)). The court thus found Berenholz v. United States, 1 Cl. Ct. 620 (1982), distinguishable on its facts because, unlike in Nicholson, the Army Corps of Engineers temporarily removed and replaced a 35-foot section of the dike protecting plaintiff's property from Lake Erie.2/ Nicholson, at *19. In Berenholz, the section of dike replaced by the Corps gave way, permanently flooding the plaintiff's land. Nicholson, at *19 (citing Berenholz, at 628-29). The court distinguished Berenholz based upon the fact that the dike at issue in that case, "[which] had performed satisfactorily in the past[,] had deteriorated as a direct result of the Government's actions." Nicholson, at *19. That was not the situation in Nicholson, where the plaintiffs alleged "that the `action' constituting the taking was both designing the parallel protection system and failing to remedy existing shortcomings of that system." Nicholson, at *18. In Nicholson, there was "no dispute that the floodwalls result[ed] in a certain level of protection, even if it is open to debate as to the measure of the protection afforded against the various categories of hurricanes or degrees of storm surge." Nicholson, at *21. But, "where the government neither diverts flood waters onto a plaintiff's property nor creates a greater threat of Plaintiff, here, places great weight upon Berenholz in its opposition papers. See Plaintiff's Response in Opposition to Defendant's Motion to Dismiss for Lack of Jurisdiction at 30, 32 (hereinafter, "Plaintiff's Br."). -32/

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damage to that property, there is no intent to convert it to public use." Id. An intent to appropriate, of course, is the "key to distinguishing `a taking from an incidental injury.'" Id. (citing Berenholz, at 627). B. As Nicholson Makes Clear, the Government's Alleged Failure to Maintain a Subsurface Drain Cannot Form the Basis for a Fifth Amendment Taking

Here, Plaintiff alleges that the Government's failure to maintain a subsurface drain installed on Bureau of Land Management ("BLM") property in 1999 caused flooding of its property in 2005. See Complaint, ¶¶ 50, 56, 58-61, 99-105. "The subsurface drain is currently located on BLM land, approximately twenty yards to the east of the Forsgren property boundary." Id., ¶ 59. "From 1999 until late fall 2005, the drain appeared to be operating properly and carrying water away from the Forsgren property." Id., ¶ 58. According to Plaintiff, however, "[i]n 2005, failure by the Defendants [sic] to perform any maintenance on the drain caused the drain to stop functioning. . . caus[ing] water to accumulate on the Forsgren property." Id., ¶ 61. The alleged failure of the Government to maintain the subsurface drain forms the basis for Plaintiff's Claim Two.3/ Id., ¶¶ 98-105. Thus, as in Nicholson, the Plaintiff here does not allege that the subsurface drain in any way increased the level of flooding on its property. Instead, Plaintiff asserts in Claim Two that,

Plaintiff asserts two claims in this action. In Claim One, Plaintiff asserts a taking by flooding allegedly caused by the recharging of nearby Civilian Conservation Corps Ponds in 1995, which is the same takings claim Plaintiff asserted in the prior Forsgren action. See Defendant's Motion to Dismiss for Lack of Jurisdiction and Memorandum in Support Thereof at 10-11 ("Defendant's Opening Br."). Plaintiff first asserted Claim Two in this 2007 action, after the prior takings action was dismissed without prejudice by this Court in 2006 for lack of jurisdiction under 28 U.S.C. § 1500. See Forsgren v. United States, 73 Fed. Cl. 135 (2006). This Supplemental Brief relates only to Claim Two. -4-

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once installed, the Government had a duty to maintain the subsurface drain but failed to do so.4/ See Plaintiff's Br. at 27 (arguing that the Government was not "relieved of its duty to maintain and operate the subsurface drain"); see also Complaint, ¶¶ 98-105. Nicholson makes clear that such allegations of an omission by the Government, rather than an affirmative act, cannot support a takings claim, as the Government argued in its opening brief. See Defendant's Opening Br. at 16-18. Indeed, as were the levees and floodwalls at issue in Nicholson, the subsurface drain was installed as a mitigation measure that was "intended to mitigate flood damage." See Nicholson at *24. Like the levees and floodwalls, the natural and probable consequence of the installation of the subsurface drain in 1999 was to protect against, rather than to cause, damage from flooding. For several years after it was installed, the subsurface drain performed as intended. See Complaint, ¶ 58. Accordingly, as in Nicholson, the Government did not intend to take the Forsgren property by flooding when it installed the subsurface drain. When the drain allegedly later failed for lack of maintenance, the groundwater flow merely returned to the status quo prior to the construction of the drain -- as noted above, Plaintiff does not allege that the subsurface drain somehow increased the net flow of water toward its property. The installation of the subsurface drain in 1999, therefore, cannot support

Significantly, Plaintiff fails to identify any source of the alleged duty it seeks to impose upon the Government. In Nicholson, Judge Baskir implicitly found that the Government owed no duty of care to the plaintiffs with respect to the levees and floodwalls. This is evident from his conclusion that, "[e]ven assuming that the Government failed to meet some unspecified duty of care in designing, building or maintaining the flood control system in New Orleans, we can find no basis for relief under the takings clause." Nicholson, at *24 (citing Columbia Basin Orchard v. United States, 132 Ct. Cl. 445, 452 (1955) ("An accidental or negligent impairment of the value of a property is not a taking, but, at most, a tort.")). Similarly, the Government owes Plaintiff no duty of care in maintaining the subsurface drain, here. -5-

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Plaintiff's takings claim asserted in Claim Two.5/ Accordingly, Nicholson supports the Defendant's argument that Government inaction cannot form the basis for a takings claim. As Defendant makes clear in its opening brief, because Claim Two is not supported by any alleged affirmative act by the Government, it fails to assert a new, distinct cause of action from Claim One and, therefore, also is time-barred under 28 U.S.C. § 2501. See Defendant's Opening Br. at 16-19; see also Defendant's Reply Memorandum at 1618. Respectfully submitted, RONALD J. TENPAS Acting Assistant Attorney General Environment & Natural Resources Division

/s/ Bruce K. Trauben BRUCE K. TRAUBEN G. EVAN PRITCHARD Environment & Natural Resources Division Natural Resources Section United States Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 Tel.: (202) 305-0238; Fax: (202) 305-0267

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The only alleged affirmative act performed by the Government that could possibly support a takings claim is the modification of the CCC Ponds in 1995, as Plaintiff asserts in Claim One. Defendant makes clear in its opening brief, however, that the Court lacks jurisdiction over Claim One because it is time-barred under 28 U.S.C. § 2501. See Defendant's Opening Br. at 10-16. Indeed, Plaintiff does not dispute that Claim One is untimely, but argues that the statute of limitations should be tolled. See Plaintiff's Br. at 2, 8-14. -6-

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OF COUNSEL: Steven M. Hoffman Attorney Office of the Solicitor Rocky Mountain Regional Office United States Dept. of Interior 755 Parfet Street, Room 151 Lakewood, CO 80215 (303) 231-5363 fax Diane M. Connolly Deputy Regional Attorney Office of the General Counsel United States Dept. of Agriculture Mountain Region P.O. Box 25005 Lakewood, CO 80225 (303) 275-5557 fax

Dated: August 24, 2007

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