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Case 1:05-cv-01119-SGB Document 27 Filed 10/04/2006 Page 1 of 23

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

ROCCO TOMMASEO, and
THOMAS TOMMASEO, and
ROCKY AND CARLO, INC., and
STEVEN BORDELON, husband of,
and CYNTHIA BORDELON and,
STEVE’S MOBILE HOME & R.V. REPAIR,
INC.


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UNITED STATES OF AMERICA,

Plaintiffs,

v.

Defendant.

No. 05-1119L

Hon. Susan G. Braden

DEFENDANT’S MOTION TO DISMISS AND MEMORANDUM IN SUPPORT

THEREOF

_____________________________________________________________________________

SUE ELLEN WOOLDRIDGE
Assistant Attorney General
Environment and Natural Resources Division

FRED R. DISHEROON, Special Litigation Counsel
MARK T. ROMLEY, Trial Attorney
Natural Resources Section
Environment and Natural Resources Division
U.S. Department of Justice
601 D. St. N.W., Room 3022
Washington, D.C. 20004
Telephone: (202) 616-9649
Fax: (202) 616-9667

Counsel for the Defendant.

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Case 1:05-cv-01119-SGB Document 27 Filed 10/04/2006 Page 2 of 23

TABLE OF CONTENTS

BACKGROUND

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

II.

III.

SUMMARY OF ARGUMENT

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

STANDARD OF REVIEW

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

PLAINTIFFS’ CLAIMS SOUND IN TORT AND ARE OUTSIDE
THIS COURT’S JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A.

B.

The Flooding of Plaintiffs’ Property Was Not the Direct,
Natural or Probable Result of the Construction, Maintenance,
Operation, Dredging or Erosion of the MRGO Because
the MRGO Was Not the Likely Cause of the Flooding and
Such Flooding Was Not Foreseeable

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

The Flooding of Plaintiffs’ Property Is Not Inevitably
Recurring; As Such, Plaintiffs’ Claims Sound in Tort
and Are Outside the Jurisdiction of This Court

. . . . . . . . . . . . . . . . . . . 14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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TABLE OF AUTHORITIES

CASES

Baird v. United States,

5 Cl. Ct. 324 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Banks v. United States,

69 Fed.Cl. 206 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 12, 14

Barnes v. United States,

210 Cl. Ct. 467, 538 F.2d 865 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 14, 16

Bartz v. United States,

224 Ct.Cl. 583, 633 F.2d 571 (Ct. Cl. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Bond v. United States,

47 Fed. Cl. 641 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Brace v. United States,

72 Fed.Cl. 337 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Briscoe v. LaHue,

663 F.2d 713 (7th Cir. 1981)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Burt v. Makita USA, Inc.,

212 F.Supp.2d 893 (N.D.Ind. 2002)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Cedars-Sinai Med. Ctr. v. Watkins,

11 F.3d 1573 (Fed. Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Entines v. United States,

39 Fed. Cl. 673 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Eyherabide v. United States,

170 Ct. Cl. 598, 345 F.2d 565 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Ferreiro v. United States,

350 F.3d 1318 (Fed. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Figueroa v. United States,

57 Fed. Cl. 488 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

First English Evangelical Lutheran Church of Glendale v. Los Angeles County,

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482 U.S. 304 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Forest Properties v. United States,

177 F.3d 1360 (Fed. Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9

Fromme v. United States,

412 F.2d 1192 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Graci v. United States,

435 F. Supp. 189 (E.D. La. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 10, 11, 14

Grajales-Romero v. American Airlines, Inc.,

194 F.3d 288 (1st Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Laughlin v. United States,

22 Cl. Ct. 85 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

LeBlanc v. United States,

50 F.3d 1025 (Fed. Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Leeth v. United States,

22 Cl. Ct. 467 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Mars Inc. v. Kabushiki-Kaisha Nippon Conlux,

24 F.3d 1368 (Fed. Cir. 1994)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Moden v. United States,

404 F.3d 1335 (Fed. Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 9, 11, 12, 13

Napier v. F/V Deesie, Inc.,

454 F.3d 61 (1st Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

North Counties Hydro-Electric Co. v. United States,

138 Ct.Cl. 380, 151 F.Supp. 322 (1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Ridge Line, Inc. v. United States,

346 F.3d 1346 (Fed. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 9, 11, 13, 14, 15

Scheuer v. Rhodes,

416 U.S. 232 (1974)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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Schillinger v. United States,
155 U.S. 163 (1894)

Singleton v. United States,
6 Cl.Ct. 156 (1984)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Skandia Ins. Co., Ltd. v. Star Shipping AS,

173 F. Supp. 2d 1228 (S.D. Ala. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Taylor v. United States,

49 Fed. Cl. 598 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. 564.54 Acres of Land,

441 U.S. 506 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Dickinson,

331 U.S. 745 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Pewee Coal Co.,

341 U.S. 114 (1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Westinghouse Elec. Corp. v. United States,

41 Fed. Cl. 229 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Zoltek Corp. v. United States,

442 F.3d 1345 (Fed. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CONSTITUTIONS

U.S. Const. amend. V

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

STATUTES

The Tucker Act,

28 U.S.C. § 1491(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

28 U.S.C. § 2501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REGULATIONS

46 FR 29933 (June 4, 1981)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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RULES

RCFC 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
RCFC 12(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
RCFC 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 15
RCFC 9(h)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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EXHIBITS

Description

Map of New Orleans Elevation by Neighborhood with Major Roads
Fiscal Year 2005, Annual Report of the Secretary of the Army on Civil Works
Activities
Notes on the Influence of the Mississippi River Gulf Outlet on Hurricane
Induced Storm Surge in New Orleans and Vicinity
The Direct Impact of the MRGO on Hurricane Storm Surge
Tropical Cyclone Report, Hurricane Katrina

Exhibit
Letter
A
B

C

D
E

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

ROCCO TOMMASEO, and
THOMAS TOMMASEO, and
ROCKY AND CARLO, INC., and
STEVEN BORDELON, husband of,
and CYNTHIA BORDELON and,
STEVE’S MOBILE HOME & R.V. REPAIR,
INC.


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UNITED STATES OF AMERICA,

Plaintiffs,

v.

Defendant.

No. 05-1119L

Hon. Susan G. Braden

DEFENDANT’S MOTION TO DISMISS AND MEMORANDUM IN SUPPORT

THEREOF

_____________________________________________________________________________

Defendant, United States of America, hereby submits this memorandum in support of its

Motion to Dismiss Plaintiffs’ First Amended Complaint1/ (the “Complaint”) pursuant to Rule

12(b)(1) of the Rules of the Court of Federal Claims (“RCFC”). Plaintiffs Rocco Tommaseo,

Thomas Tommaseo, Steven Bordelon, Cynthia Bordelon, Rocky and Carlo, Inc. and Steve’s

Mobile Home & R.V. Repair, Inc. claim that the United States, through the creation and

continued operation and maintenance of the Mississippi River Gulf Outlet (“MRGO”), has taken

their property without just compensation in violation of the Fifth Amendment of the Constitution

1/ Plaintiffs filed their Original Class Action Complaint on October 17, 2005. Docket No. 1.
Their First Amended Complaint was filed January 13, 2006. Docket No. 10. For ease of
reference the First Amended Complaint will be referred to as the “Complaint.”

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of the United States. Specifically, Plaintiffs allege that their properties were flooded as the

result of a storm surge allegedly pushed by Hurricane Katrina through the MRGO into St.

Bernard Parish where Plaintiffs’ properties are located. Compl. at ¶¶ 15-20. In the alternative,

Plaintiffs claim that Defendant has taken a flowage easement over their respective properties

because they allege that future storms will result in flooding of their properties. Compl. at ¶¶ 21-

25. As we demonstrate below, Plaintiffs’ claims are beyond the jurisdiction of this Court. As

discussed infra, Plaintiffs’ claims sound in tort, over which the district courts have exclusive

jurisdiction.2/

BACKGROUND

It is undisputed that on August 29, 2005, a storm surge created by Hurricane Katrina

flooded large areas of the New Orleans metropolitan area, including much of St. Bernard Parish.

Compl. at ¶ 11. Unfortunately, this was not the first time that St. Bernard Parish was flooded by

hurricane storm surge. The low-lying parish was also inundated by hurricane storm surge in

1915, 1947, 1956 and 1965. Graci v. United States, 435 F. Supp. 189, 193 (E.D. La. 1977).

Plaintiffs’ claims are based on the unsupported allegation that Hurricane Katrina “push[ed] a

storm surge through the MRGO, and that “this flooding was a direct, natural or probable result of

the creation of the MRGO . . . .” Compl. at ¶¶ 11-12. They do not, however, allege or plead any

2/ At the time Defendant agreed to file the instant motion pursuant to RCFC 12(b), it intended to
raise a defense that Plaintiffs’ claims were time-barred by the applicable stature of limitations,
28 U.S.C. § 2501. However, given the ambiguity of the allegations contained in the Complaint
and how little is known about the extent of any impact to the properties allegedly owned by the
named Plaintiffs, Defendant believes that the complaint does not spell out sufficient detailed
facts or claims that would allow for a motion to dismiss on limitation grounds at this point
without further factual development. If this motion should be denied, Defendant reserves the
right to raise the statute of limitations as a defense once the facts of this case, and Plaintiffs’
allegations, are more fully developed.

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factual basis for this conclusion, relying rather on unspecified “information and belief.” Id. at ¶

13.

The MRGO is a federal navigation project with an authorized channel depth of 36 feet,

surface width of 650 feet and bottom width of 500 feet. Pub. L. 455, 70 Stat. 65, 65 (1956). The

channel extends from the Inner Harbor Navigation Canal southeasterly some 76 miles to the 38

foot depth contour in the Gulf of Mexico. Safety Zone; Mississippi River Gulf Outlet, 46 FR

29933 (June 4, 1981). The MRGO is bordered on its eastern bank by Lake Borgne and on its

western bank by a large marsh that lies between Lake Borgne and St. Bernard Parish. See New

Orleans Elevation by neighborhood with major roads, available at

www.gnocdc.org/maps/pdfs/neworleans_elevation.pdf (last visited Oct. 3, 2006), attached as

Defendant’s Exhibit A (labels for the MRGO and Lake Borgne supplied); see also Fiscal Year

2005, Annual Report of the Secretary of the Army on Civil Works Activities at 11-2, attached as

Defendant’s Exhibit B. Construction on the MRGO Navigation Project (the “Project”) was

completed in 1968 and there have been no Congressionally authorized changes in the Project’s

dimensions since that time. See Def’s Ex. B at 11-2 to 11-3. The MRGO was constructed as an

emergency outlet from the Mississippi River in the interest of national defense and general

commerce and to provide a safer and shorter route between the Port of New Orleans and the Gulf

of Mexico following Congressional authorization in 1956. Id.; Pub. L. No. 455, 70 Stat. 65, 65

(1956). Work on the Project began in 1958 and it was completed to its authorized depth and

width in 1968. Def’s Ex. B at 11-3.

Further, the relative physical size of the MRGO limits its capacity to carry a large storm

surge. In its review of the effects of Hurricane Betsy in 1965, the United States District Court

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for the Eastern District of Louisiana in Graci v. United States found, as a matter of fact, that

“[t]he MRGO has a width of 500 feet. Within 120 miles of coastline receiving a surge of +8 feet

or greater during Hurricane Betsy, the MRGO represents approximately .000789%, or less than

one-thousandth of the affected area.” 435 F. Supp. at 193. In any event, two studies conducted

after the storm show that the storm surge that led to flooding in St. Bernard Parish after

Hurricane Katrina came from Lake Borgne and not up the MRGO. See, e.g., James Westerink,

Bruce Ebersole and Harley Winer, Appendix E, Notes on the Influence of the Mississippi River

Gulf Outlet on Hurricane Induced Storm Surge in New Orleans and Vicinity at E-5, attached as

Defendant’s Exhibit C; State of Louisiana, Department of Natural Resources, The Direct Impact

of the MRGO on Hurricane Storm Surge 9-1 (Feb. 2006), attached as Defendant’s Exhibit D.

Both the studies of the Interagency Performance Evaluation Team (“IPET”) and a

separate report prepared for the Louisiana Department of Natural Resources (“Louisiana DNR”)

concluded that the influence of the MRGO on storm surges, including that from Hurricane

Katrina, are quite small during large scale flooding events, and that the storm surge propagation

of the long reach of the MRGO is just a few tenths of a foot. Id. Specifically, the Louisiana

DNR study concluded that “[t]he MRGO channel does not appear to contribute significantly to

peak surge during severe storms, when the conveyance of surge is dominated by flow across the

entire surface of the coastal lakes and marsh.” Def’s Ex. D at 9-1.

Hurricane Katrina was “an extraordinarily powerful and deadly hurricane that carved a

wide swath of catastrophic damage . . .” across the coastal areas of Mississippi, Alabama and

Louisiana. National Hurricane Center, Tropical Cyclone Report, Hurricane Katrina (Dec. 20,

2005), attached without tables as Defendant’s Exhibit E at 1, 6. As it passed through the open

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waters of the Gulf of Mexico, Hurricane Katrina was rated as a Category 5 storm on the Saffir-

Simpson hurricane scale – the highest category into which a storm can be placed. Id. At the

time Hurricane Katrina struck St. Bernard Parish, the storm was still a powerful “high-end

Category 3 hurricane . . . .” Id. The “huge size” of Hurricane Katrina, its winds stretched out for

200 nautical miles from the storm’s eye, id. at 3, and strength of the storm created a storm surge

in St. Bernard Parish measuring between fifteen and nineteen feet high. Id. at 9-10. This surge

was built up while the hurricane, then a Category 5, churned over the Gulf of Mexico and pushed

waves of water westward where the water “set-up” against the Gulf Coast. Id. This “set up” of

water led to the inundation of the marshlands that lie between Lake Borgne and St. Bernard

Parish. Def’s Ex. C at E-5. As discussed supra, this inundation of the “coastal lakes and marsh”

minimizes any effect that the MRGO might have on flooding in the Parish. See Def’s Ex. D at

9-1. Further, as the IPET report and the Louisiana DNR reports demonstrate, this surge

primarily came from Lake Borgne and swept westerly across St. Bernard Parish and was not

funneled into the Parish via the MRGO. See Def’s Ex. C at E-5; Def’s Ex. D.

I.

SUMMARY OF ARGUMENT

ARGUMENT

All three counts of Plaintiffs’ Complaint must be dismissed because, at most, Plaintiffs’

claims sound in tort and are outside the jurisdiction of this Court. The Tucker Act, 28 U.S.C. §

1491(a), confers jurisdiction upon this Court to hear “any claim against the United States

founded either upon the Constitution, or any Act of Congress or any regulation of an executive

department, or upon any express or implied contract with the United States, or for liquidated or

unliquidated damages in cases not sounding in tort.” See LeBlanc v. United States, 50 F.3d

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1025, 1028 (Fed. Cir. 1995) (discussing the Tucker Act). Accordingly, to the extent Plaintiffs’

claims sound in tort, they must be dismissed. Id.

Plaintiffs’ claims sound in tort and are outside the jurisdiction of this Court for two

reasons. First, because the MRGO was not the likely cause of Plaintiffs’ injuries and because

Hurricane Katrina acted as an intervening cause between the Defendant’s acts and the flooding

of Plaintiffs’ property, Plaintiffs cannot show that their injuries were the “direct, natural or

probable result” of the construction, maintenance, operation, dredging and erosion of the

MRGO. See Moden v. United States, 404 F.3d 1335, 1344 (Fed. Cir. 2005). Second, Plaintiffs’

claims arise from a single flood and such injuries cannot give rise to takings liability. See Ridge

Line, Inc. v. United States, 346 F.3d 1346, 1355 (Fed. Cir. 2003). Rather, such claims “occup[y]

the category of mere consequential injury, or tort . . . .” Id. (quoting Barnes v. United States, 210

Cl. Ct. 467, 538 F.2d 865, 870 (1976)).

II.

STANDARD OF REVIEW

When considering a motion to dismiss for lack of subject matter jurisdiction under RCFC

12(b)(1), “the court must accept as true the complaint's undisputed factual allegations and

construe the facts in the light most favorable to plaintiff.” Figueroa v. United States, 57 Fed. Cl.

488, 492 (2003) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). If, however, a RCFC

12(b)(1) motion to dismiss challenges the factual basis for the court's jurisdiction, then the

factual allegations in the complaint are not controlling, and the court may consider other

evidence to resolve the dispute. Ferreiro v. United States, 350 F.3d 1318, 1324 (Fed. Cir. 2003);

see also Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993) (“If the Rule

12(b)(1) motion denies or controverts the pleader's allegations of jurisdiction, however, the

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movant is deemed to be challenging the factual basis for the court's subject matter jurisdiction.

In such a case, the allegations in the complaint are not controlling.”) (citations omitted).

Plaintiffs bear the burden of establishing subject matter jurisdiction, which must be done

by a preponderance of the evidence. Entines v. United States, 39 Fed. Cl. 673, 678 (1997)

(“Plaintiff bears the burden of establishing all jurisdictional requirements, including compliance

with the six-year statute of limitations, and must do so by a preponderance of the evidence.”).

“Conclusory allegations unsupported by any factual assertions will not withstand a motion to

dismiss.” Bond v. United States, 47 Fed. Cl. 641, 647 (2000) (quoting Briscoe v. LaHue, 663

F.2d 713, 723 (7th Cir. 1981)).

Particularly relevant to this motion is the rule that a plaintiff's “legal conclusions,

deductions, or opinions couched as factual allegations are not given a presumption of

truthfulness.” Westinghouse Elec. Corp. v. United States, 41 Fed. Cl. 229, 233 (1998) (internal

quotations and citations omitted). Moreover, “[a]mbiguities regarding the existence of subject

matter jurisdiction should be 'resolved against the assumption of jurisdiction.'” Taylor v. United

States, 49 Fed. Cl. 598, 602 (2001) (quoting Mars Inc. v. Kabushiki-Kaisha Nippon Conlux, 24

F.3d 1368, 1373 (Fed. Cir. 1994)).

III.

PLAINTIFFS’ CLAIMS SOUND IN TORT AND ARE OUTSIDE THIS COURT’S
JURISDICTION

The Takings Clause of the Fifth Amendment provides, in relevant part, “nor shall private

property be taken for public use, without just compensation.” U.S. Const. amend. V. A "taking"

can occur directly through the exercise of the governmental power of Eminent Domain, United

States v. 564.54 Acres of Land, 441 U.S. 506 (1979), or indirectly, when the government acts in

a manner which causes an inverse condemnation, First English Evangelical Lutheran Church of

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Glendale v. Los Angeles County, 482 U.S. 304, 315 (1987). Inverse condemnation, in turn, can

occur by direct physical invasion (referred to as a ‘physical taking’), United States v. Pewee

Coal Co., 341 U.S. 114 (1951), or by virtue of the government’s restriction on land use which

goes “too far,” referred to as a regulatory taking, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,

415 (1922).

A physical taking occurs “when the government itself occupies the property or ‘requires

the landowner to submit to physical occupation of its land.’” Forest Properties v. United States,

177 F.3d 1360, 1364 (Fed. Cir. 1999). Plaintiffs have alleged a permanent or temporary physical

taking of their property, or in the alternative, that the United States has taken a permanent

flowage easement across that property. Compl. at ¶¶ 16, 19, 25.

As discussed supra, this Court is one of limited jurisdiction. If Plaintiffs’ claims properly

allege a Fifth Amendment takings claim, this Court may hear the case. Moden, 404 F.3d at

1342. If, however, Plaintiffs’ Complaint raises only claims arising in tort, it must be dismissed.

See id. The analysis used to determine whether a claim sounds in tort or, in fact, states a valid

Fifth Amendment takings claim is comprised of two parts. Ridge Line, 346 F.3d at 1355. The

first step in this analysis requires the Court to evaluate whether the flooding of Plaintiffs’

property was “the direct, natural or probable result of an authorized activity and not the

incidental or consequential injury inflicted by the action. . . .” Id. The second step of this

inquiry requires the Court to determine whether the alleged government action “appropriate[d] a

benefit to the government at the expense of the property owner, or at least preempt[ed] the

owner’s right to enjoy his property for an extended period of time rather than merely inflict[ing]

an injury that reduces its value.” Id. at 1356. It is Plaintiffs’ burden to establish that both of

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these elements are met. Moden, 404 F.3d at 1342.

A.

The Flooding of Plaintiffs’ Property Was Not the Direct, Natural or Probable
Result of the Construction, Maintenance, Operation, Dredging or Erosion of
the MRGO Because the MRGO Was Not the Likely Cause of the Flooding
and Such Flooding Was Not Foreseeable

Under the first prong of this two-part inquiry, the Court must determine whether the

damage done to Plaintiffs’ property by Hurricane Katrina’s storm surge was the “direct, natural,

or probable result” of the construction of the Project. Ridge Line, 346 F.3d at 1356. To meet

this standard Plaintiffs must show not only that their injuries were in fact caused by Defendant’s

action, but also that Defendant “should have predicted or foreseen the resulting injury.” Moden,

404 F.3d at 1343.

The first strand of the direct, natural and probable test requires “proof of causation –

[i.e.,] that the government act was the likely cause of the injury.” Banks v. United States, 69

Fed.Cl. 206, 212 (2006). Accordingly, “this court and the Court of Claims have denied

recoveries in cases where the subject property was previously prone to natural flooding.” Brace

v. United States, 72 Fed.Cl. 337, 362 (2006) (discussing the direct, natural or probable

requirement). See also Leeth v. United States, 22 Cl. Ct. 467, 485; Laughlin v. United States, 22

Cl. Ct. 85, 102 (1990); Bartz v. United States, 224 Ct.Cl. 583, 633 F.2d 571 (Ct. Cl. 1980).

In the present case, the causation requirement cannot be met because the sole cause of the

alleged taking was a natural event, Hurricane Katrina. Plaintiffs have not alleged and cannot

show that the United States or its agents had any control over or connection whatsoever to that

event. In the takings cases with which this Court is familiar, any taking has been predicated

upon situations where the government had some actual control over the flood waters that caused

the damage complained of - either by impounding river flows, releasing water from federal

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projects or by purposefully diverting water. See, e.g., United States v. Dickinson, 331 U.S. 745

(1947) (impoundment of water behind a federally constructed dam caused erosion on claimants’

property); Baird v. United States, 5 Cl. Ct. 324 (1984) (operation of structures related to a federal

dam alleged to have resulted in a taking). In the instant case, however, no such control or

involvement of the federal government existed. Rather, the hurricane spawned a huge flood

surge which swept over St. Bernard Parish. In fact, Plaintiffs merely allege that the hurricane

pushed the surge through the MRGO. There is no allegation that any act of the United States

contributed to that flooding event, nor could there be. The simple, undisputed fact is that the

damage complained of by the Plaintiffs was not due to any act or omission of the United States

or in any manner controllable by any action of the United States.

Further, it is indisputable that on several prior occasions, St. Bernard Parish has suffered

repeated flooding from hurricane events. In 1915, 1947 and 1956, all dates well prior to the

construction of the MRGO, St. Bernard Parish was flooded in the wake of three hurricanes.

Graci v. United States, 435 F. Supp. 189, 193 (E.D. La. 1977). Additionally, in 1965, when the

MRGO was almost fully completed and open to ship traffic, St. Bernard Parish was flooded in

the wake of Hurricane Betsy. Id. In fact, the flooding brought by Hurricane Betsy spawned a

lawsuit, Graci v. United States, in the United States District Court for the Eastern District of

Louisiana. 435 F.Supp. at 190. In that case, the plaintiffs, residents of St. Bernard Parish,

argued, just as they do here, that it was the negligent construction, operation and maintenance of

the MRGO that caused the inundation of their property. Id. at 193. However, following a trial,

the Graci court ruled that Hurricane Betsy and other local hydrological features, not the MRGO,

were the cause of the parish’s flooding in 1965. Id. at 196.

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These facts lead to the inescapable conclusion that “direct” cause of the flooding of

Plaintiffs’ property in 2005 was a hurricane, just as it was in 1915, 1947, 1956 and 1965. The

history of the area tells an obvious truth: even without the presence of the MRGO, St. Bernard

Parish experienced floods during hurricanes. It follows that Plaintiffs have not, and cannot,

show that the flooding of their property was directly caused by the construction of the MRGO.

Banks v. United States, 69 Fed.Cl. at 212; Brace v. United States, 72 Fed.Cl. at 362.3/

Accordingly, Plaintiffs cannot show that their claims are due treatment under takings law rather

than tort law, or that the jurisdiction of this Court is appropriate. Ridge Line, 346 F.3d at 1356;

Moden, 404 F.3d at 1342.

The second strand of the “direct, natural or probable” component of the tort-taking

inquiry is aimed at determining whether Plaintiffs’ injuries were foreseeable. Banks, 69 Fed.Cl.

at 212. This strand requires Plaintiffs to prove “‘that the government should have predicted or

foreseen the resulting injury’ – [i.e.,] that the injury was the likely result of the government act.”

Id. (quoting Moden, 404 F.3d at 1343). The Federal Circuit further advised in Moden that

“injury may not be foreseeable if an intervening cause breaks the chain of causation.” 404 F.3d

at 1343.

The acts on which Plaintiffs base their claims are the construction, maintenance and

operation and the concomitant erosion of the MRGO. Compl. at ¶¶ 12, 13. Even if there had

3/We specifically note that Plaintiffs do not make any effort to show how their particular
properties were inundated or how they are located with regard to the MRGO. They merely claim
that MRGO caused all the flooding in St. Bernard Parish, a claim which cannot be substantiated
in this case. Accordingly, Plaintiffs’ Complaint does not comply with RCFC 9(h)(7) which
requires plaintiffs in inverse condemnation suits to identify the specific property interest they
contend has been taken by the United States.

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been some causal connection between the MRGO and the flooding, which as we have shown

there is not, Plaintiffs must also show that it was foreseeable that these actions would cause the

flooding of which Plaintiffs complain; or in other words, whether “the likely result” of the

construction, maintenance, operation and erosion of the MRGO was the flooding of Plaintiffs’

property. Banks, 69 Fed.Cl. at 212. However, if there was a cause intervening between

Defendant’s alleged acts and the flooding of their property, Plaintiffs’ damages were not

foreseeable. Moden, 404 F.3d at 1343.

In Moden, the Federal Circuit noted that a plaintiff’s “injury may not be foreseeable if an

intervening cause breaks the chain of causation.” 404 F.3d at 1343. An intervening cause is

“[a]n event that comes between the initial event in a sequence and the end result . . . .” Black’s

Law Dictionary 234 (8th Ed. 2004). Generally, an intervening cause must be unforeseeable in

order to cut off a defendant’s potential liability. See, e.g., Napier v. F/V Deesie, Inc., 454 F.3d

61 (1st Cir. 2006); Grajales-Romero v. American Airlines, Inc., 194 F.3d 288 (1st Cir. 1999);

Burt v. Makita USA, Inc., 212 F.Supp.2d 893 (N.D.Ind. 2002).



Plaintiffs do not contend that the MRGO, standing alone, caused the flooding

of their property. Rather, Plaintiffs allege that the effects of Hurricane Katrina, when combined

with the construction, maintenance, dredging and erosion of the MRGO, caused the storm’s

surge to enter their property. Compl. at ¶¶ 11, 13. Even though it is foreseeable that the Gulf

Coast might be hit by a storm during any given hurricane season, a hurricane of the size and

magnitude of Hurricane Katrina, with its nearly unprecedented size, wind velocity and tidal rise,

and which resulted in massive devastation, cannot be considered foreseeable. Rather, it is a

classic case of an "Act of God" which is not predictable or foreseeable. See Skandia Ins. Co.,

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Ltd. v. Star Shipping AS, 173 F. Supp. 2d 1228, 1239 (S.D. Ala. 2001) ([T]he “Act of God”

defense applies only to events in nature so extraordinary that the history of climatic variations

and other conditions in the particular locality affords no reasonable warning of them.”).

Hurricane Katrina was one of the largest and most powerful recorded storms ever to hit

the United States. Def’s Ex. E at 3. At the time it rolled across the Gulf of Mexico pushing a

storm surge toward Louisiana, Hurricane Katrina was the fourth most intense storm ever

recorded in the Atlantic Ocean. Def’s Ex. E at 6. Additionally, the “massive storm surge

produce by Katrina, even though it had weakened from Category 5 to Category 3 at landfall in

Louisiana, can be generally explained by the huge size of the storm.” Def’s Ex. 6 at 9. Because

Plaintiffs’ damages were not the likely result of the construction, maintenance, operation or

erosion of the MRGO, but were instead the likely result of Hurricane Katrina’s almost

unprecedented, unforeseeable and overwhelming intensity, size and resultant storm surge,

Plaintiffs’ damages were not foreseeable and were not the direct, natural or probable

consequences of construction of the MRGO. Moden, 404 F.3d at 1342; Banks, 69 Fed.Cl. at

212. Rather, Hurricane Katrina was an unforeseeable intervening cause of Plaintiffs’ flood

damage, making Plaintiffs’ alleged damages unforeseeable. It follows that, at the most,

Plaintiffs’ claims sound in tort, and therefore are not within the jurisdiction of this Court. Ridge

Line, 346 F.3d at 1356.

B.

The Flooding of Plaintiffs’ Property Is Not Inevitably Recurring

The second prong of the tort versus taking inquiry “requires the court to consider whether

the government’s interference with any property rights of [plaintiffs] was substantial and

frequent enough to rise to the level of a taking.” Ridge Line, 346 F.3d at 1357. In Ridge Line,

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the Federal Circuit noted that “[g]overnment-induced flooding not proved to be inevitably

recurring occupies the category of mere consequential injury, or tort.” Ridge Line, 436 F.3d at

1355 (quoting Barnes v. United States, 210 Cl. Ct. 467, 538 F.2d 865, 870 (1976)).

Since construction of the MRGO, St. Bernard Parish, the location of the property

allegedly taken in this case, was flooded in 1965 by Hurricane Betsy and then forty years later by

Hurricane Katrina in 2005. Compl. at ¶ 8; Graci, 435 F. Supp. 189. These indisputable facts do

not rise to a level sufficient for Plaintiffs to maintain a takings claim. To the contrary, “‘isolated

invasions such as one or two floodings . . , do not make a taking . . . , but repeated invasions of

the same type have often been held to result in an involuntary servitude.” Ridge Line, 346 F.3d

at 1357 (quoting Eyherabide v. United States, 170 Ct. Cl. 598, 345 F.2d 565, 569 (1965)). See

also Singleton v. United States, 6 Cl.Ct. 156 (1984) (“It is settled that a single flood does not, . . .

nor indeed one, two or three floods by themselves, . . . do not constitute a taking by inverse

condemnation.”) (citations omitted); Fromme v. United States, 412 F.2d 1192, 1197 (1969)

(holding that a taking could not be found where the landowner could only show that the flooding

of his land could “reasonably be expected to recur at intervals of about once in every 15 years,

on the average.”); North Counties Hydro-Electric Co. v. United States, 138 Ct.Cl. 380, 382-83,

151 F.Supp. 322, 323 (1957) (“two floodings, one ten years after the pool behind the dam was

completely full, and the other nineteen years after, do not constitute a taking. . . ”).

Plaintiffs cannot show that their property has been subjected to inevitably recurring

flooding due to the construction, maintenance, operation and erosion of the MRGO. Rather, as

noted supra, there was no substantial flooding of St. Bernard Parish between Hurricane Betsy in

1965 and Hurricane Katrina in 2005. Nor do plaintiffs otherwise allege. Compl. at ¶¶ 11 - 13,

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21-15. This amounts to a total of two floods in the forty years that the MRGO has been open to

shipping traffic. As noted above, for flooding to be the basis of a takings claim, such flooding

must be shown to be inevitably recurring but even “two or three floods by themselves, . . . do not

constitute a taking by inverse condemnation.” Singleton, 6 Cl.Ct. at 163. Because the flooding

of Plaintiffs’ property is not inevitably recurring, their claims at most “occup[y] the category of

mere consequential injury, or tort,” and this Court has no jurisdiction to hear their Complaint.

Ridge Line, 436 F.3d at 1355 (quoting Barnes v. United States, 538 F.2d at 870). It follows that

dismissal pursuant to RCFC 12(b)(1) is appropriate. See Zoltek Corp. v. United States, 442 F.3d

1345, 1375 (Fed. Cir. 2006) (quoting Schillinger v. United States, 155 U.S. 163, 169 (1894))

(“cases sounding in tort are not cognizable in the court of claims.”).

CONCLUSION

Wherefore, for the reasons above stated, Defendant, the United States, requests that the

First Amended Complaint herein be dismissed pursuant to RCFC 12 (b)(1) because this Court

lacks jurisdiction over the subject matter of this case.

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Case 1:05-cv-01119-SGB Document 27 Filed 10/04/2006 Page 23 of 23

Dated: October 4, 2006.

Respectfully submitted,

SUE ELLEN WOOLDRIDGE
Assistant Attorney General
Environment and Natural Resources Division

s/ Fred Disheroon by Mark T. Romley
FRED R. DISHEROON, Special Litigation Counsel
MARK T. ROMLEY, Trial Attorney
Natural Resources Section
Environment and Natural Resources Division
U.S. Department of Justice
601 D. St. N.W., Room 3022
Washington, D.C. 20004
Telephone: (202) 616-9649
Fax: (202) 616-9667

Counsel for the Defendant.

.

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