Ideker Farms, Inc. v. United States

In the United States Court of Federal Claims
No. 14-183L
(Filed: March 13, 2018)*
*Opinion originally filed under seal on February 23, 2018

)
IDEKER FARMS, INC., et al., )
) Fifth Amendment Taking; Missouri
Plaintiffs, ) River; Flooding; Liability; Causation;
) Foreseeability; and Severity.
v. )
)
THE UNITED STATES, )
)
Defendant. )
)

R. Dan Boulware, St. Joseph, MO, for plaintiffs. Edwin H. Smith, Seth C. Wright, and, R.
Todd Ehlert, St. Joseph, MO, and Benjamin D. Brown and Laura Alexander, Washington,
D.C., of counsel.

Terry M. Petrie, Environment and Natural Resources Division, U.S. Department of
Justice, Washington, D.C., with whom was Jeffrey H. Wood, Acting Assistant Attorney
General, for defendant. Jacqueline C. Brown, Laura W. Duncan, Carter F. Thurman,
and Daniela A. Arregui, Washington, D.C., of counsel.

TRIAL OPINION

FIRESTONE, Senior Judge

The pending action was brought by farmers, landowners, and business owners

from six states who claim a taking without just compensation in contravention of the

Fifth Amendment based on actions by the United States Army Corps of Engineers

(“Corps”) on the Missouri River. U.S. Const. amend. V. The plaintiffs claim that the
Corps has changed its management of the Missouri River and that these changes have

caused more flooding of their properties.

In order to manage the litigation, 44 plaintiffs were selected as representative or

“Bellwether” plaintiffs (“plaintiffs”). These plaintiffs own or farm properties that extend

from Bismarck, North Dakota to Leavenworth, Kansas. Various plaintiffs claim a taking

for flooding in 2007, 2008, 2010, 2011, 2013, and 2014. Together, these plaintiffs assert

takings claims based on over 100 flood events.

The litigation was also divided into two phases. Phase I was focused on the issue

of the United States’ liability. Each of the individual plaintiffs was called to testify or

present evidence to establish their property interest and the timing and approximate

duration of flooding on the relevant parcel of land. The court also heard testimony from

numerous expert witnesses and many federal government employees. These individuals

testified as to the changes the Corps has made to its management of the Missouri River,

whether the Corps’ changes have caused flooding or made flooding more severe for each

of the years at issue, and whether the flooding for the years at issue was a foreseeable

result of the Corps’ changes.

In Phase II of the litigation, the court will decide whether the United States has

any defenses to these plaintiffs’ claims and other legal and factual issues associated with

proving entitlement to just compensation. For those entitled to just compensation, the

court will also decide the appropriate amount of compensation.

Phase I of the trial began in Kansas City, Missouri on March 6, 2017 and was

moved to Washington, D.C. on April 24, 2017. The trial concluded on June 23, 2017 and

2
was resumed after post-trial briefing1 on November 13, 2017 for eight days of closing

arguments. During the 55 days of witness presentations, the court heard testimony from

over 95 witnesses and received over 3,250 exhibits into evidence.

Set forth below are the court’s findings of fact and conclusions of law for Phase I

of the trial. The opinion is organized into the following sections: I. Background Facts; II.

Legal Standards; III. Liability Findings (Expert Testimony); IV. Individual Plaintiffs; and

V. Conclusions.

I. Background Facts

1. The Missouri River Prior to Regulation

The Missouri River (“River”) travels 2,341 miles from its source in Three Forks,

Montana to its mouth near St. Louis, Missouri.2 PX16 at PLTF-00003114.3 The

Missouri River Basin includes most of the Great Plains and extends over 530,000 square

miles in ten states: Montana, Wyoming, North Dakota, South Dakota, Minnesota, Iowa,

Colorado, Nebraska, Kansas, and Missouri. PX99 at USACE0291936. Historically, the

River was largely “wide and shallow,” meandering across “a wide, unconstrained

1
The plaintiffs’ motion (ECF No. 396) to strike exhibit 1 to the United States’ response (ECF
No. 382-1) to plaintiffs’ post-trial brief is GRANTED. The court agrees with the plaintiffs that
the exhibit was in effect “briefing” and as such exceeded the page limit set by the court in its
July 21, 2017 post-trial order (ECF No. 370).
2
The Missouri River, which originally measured 2,546 miles in length, lost approximately 200
miles due to the intensive damming, straightening, and channelization that took place in the last
century. PX16 at PLTF-00003114.
3
Many of the background facts have been taken from the 2002 and 2011 reports of the National
Research Council whose members are taken from the National Academy of Science. PX16 and
PX17. In addition, many facts come from the Environmental Impact Statements that were
prepared in connection with various Corps activities on the River. See, e.g., PX99; PX110.

3
floodplain” resulting from constant bank erosion and deposition of sediment. PX390 at

USACE0465781; PX99 at USACE0291936-7. The River had “diverse wildlife habitats

within the meander belt and formed a natural Missouri River floodplain ecosystem that

included open shallow and deep waters, sandbars, wetlands, willow thickets, and riparian

woodlands.”4 PX99 at USACE0291936-7. This biodiversity was ensured by the River’s

transport and distribution of vast amounts of nutrient-rich sediment, which led to it being

known as the “Big Muddy.” PX16 at PLTF-00003159.

The River was known for its spring and summer rises due to snowmelt and rainfall

in the Plains (spring flooding) and in the Rocky Mountains (summer flooding). Id.

Historically, flooding was common and widespread on the Missouri River, drastically

impacting the appearance and functionality of the River, with “water spread[ing] across

its floodplain [thus] hydrologically connecting the channel[] to its floodplain and

backwaters[]” and creating new channels. PX16 at PLTF-00003158-9, PLTF-00003161-

5. Spring flooding tended to last “one to two weeks and was relatively localized,”

whereas summer flooding “lasted longer and inundated larger portions of the floodplain.”

Id. at PLTF-00003159. Although the River’s main channel was 1,000 to 10,000 feet

4
At the time of Lewis and Clark’s “Corps of Discovery” expedition, the Missouri River was
highly diverse, with a wide array of morphologies found in different parts of the River. In many
areas, the River “was a multichannel system, with a primary channel and often multiple
secondary channels . . . widespread bars, islands, and shallow sloughs[,]” while in others, it
comprised “natural levees, backwater lakes, large meander loops, oxbow lakes, and sandbars and
dunes[.]” PX17 at PLTF-00007916 (citing Hallberg et al. and Moody et al.). In addition,
various shallower channels and backwater habitats created “slower-moving waters [that were]
critical for the reproduction, shelter, and feeding of fish species[,]” while higher lands
encompassed “rich forests, prairie grasses, and thick underbrush that contained a myriad of plant
species.” PX16 at PLTF-00003165.
4
wide during normal flow periods, the width increased to 25,000 to 35,000 feet during

flooding, with the River “flow[ing] bluff-to-bluff and cover[ing] a width up to 17 miles”

in certain areas during heavy flooding. PX17 at PLTF-00007916.

2. Regulation of the Missouri River by the Federal Government

In the early twentieth century, the federal government determined that it was in the

national interest for the “wild, free-flowing” Missouri River “to be controlled for

purposes of human settlement and as a resource to support economic development.”

PX16 at PLTF-00003157, PLTF-00003098. To meet the demands of settlers and

minimize flooding, Congress adopted a series of laws starting with the Rivers and

Harbors Act in 1927, which regulated navigation, and the Flood Control Act (“FCA”) in

1917, “which placed flood control on equal footing with navigation within the Corps[.]”5

PX390 at USACE0465778; PX16 at PLTF-00003130.

As discussed in detail infra, flood control was to be achieved in part by controlling

flow into the River by constructing a series of interlocking dams and reservoirs with

controlled releases of water from Gavins Point Dam, the lowest of the six dams

constructed. PX99 at USACE0291944-5. In addition, the Corps would eventually

construct a series of federal levees to help contain flooding in sections of the River below

Gavins Point Dam. PX555 at USACE3590059, USACE3590183. The Corps also

constructed a series of structures within the River that were designed to stabilize the

5
Following the Great Mississippi River Flood of 1927, Congress passed the 1936 Flood Control
Act which made flooding a “federal responsibility” and created a national flood-control policy.
PX16 at PLTF-00003130.
5
River’s banks, limit erosion, and ensure that a deeper, self-scouring channel existed in the

center of the River to move flood waters more quickly through the River and allow for

navigation. PX16 at PLTF-00003129-30.

a. The Missouri River Mainstem Reservoir System

Construction of most of the dams and reservoirs by the Corps was authorized by

the 1944 FCA.6 The 1944 FCA identified six purposes that the construction and

operation of the Missouri River Mainstem Reservoir System (“System”) would serve:

flood risk reduction; enhanced navigation; generation of hydroelectric power; irrigation

and water quality; recreation; and fish and wildlife. Id. at PLTF-00003132-51. See also

PX390 at USACE0465778. The 1944 FCA also required the Corps to follow the broad

outlines of what is known as the “Pick–Sloan Plan.” PX17 at PLTF-00007903. Under

the Pick–Sloan Plan, the Corps was to operate the System to “reduce the river’s natural

hydrologic variability in order to provide a steady and reliable 9-foot deep navigation

channel[,]” making use of regulated storage of water in and releases from the reservoirs.

PX16 at PLTF-00003109. Congress strengthened the purpose of the Pick–Sloan Plan by

authorizing the Missouri River Bank Stabilization and Navigation Project (“BSNP”) in

the 1945 Rivers and Harbors Act so as to “facilitate navigation, control flooding, provide

water supplies, and meet other social and economic needs.” PX17 at PLTF-00007910.

The Corps constructed and operates six mainstem dams on the Missouri River:

6
The mainstem dams and reservoirs are those on the Missouri River itself as distinguished from
the dams and reservoirs that were also constructed on certain tributaries flowing into the River to
also assist in flood control and for other purposes. PX16 at PLTF-00003116; PX17 at PLTF-
00007891.
6
Fort Peck in northeastern Montana; Garrison in central North Dakota; Oahe, Big Bend,

and Fort Randall in South Dakota; and Gavins Point along the Nebraska and South

Dakota border. Tr. 6820:6-12, 6821:1-3. The System became fully operational in 1967

and is the largest reservoir storage system in the United States, with a total storage

capacity of 73.1 million acre-feet (“MAF”). PX390 at USACE0465783-4. Each of the

System’s reservoirs have four primary operating zones: a permanent pool at the bottom;

a carryover multiple use zone, which is the largest and is “designed to hold water that

can be used during periods of drought[;]” an annual flood control and multiple use zone;

and, at the top, an exclusive flood-control zone. Tr. 6832:15-6834:1. A secondary zone

is the surcharge zone, which is available in each reservoir in the space between the top

of the spillway gates in the closed position and the top of the spillway gates when all are

raised and releasing water underneath.7 Tr. 6836:20-24, 6843:2-24. The surcharge zone

has only been used in extreme situations when the reservoirs are filling beyond capacity.

Tr. 6844:23-6845:6. To date, the surcharge zone has only been used at Fort Peck and

Garrison Dams in 1975, 1997, and 2011. Tr. 6844:23-6845:14.

By design, the System reservoirs today are generally kept 75 percent full in order

to serve all of the FCA-authorized purposes. Tr. 6903:18-6905:12. Importantly, the

mainstem dams regulate only half of the Missouri River Basin. Tr. 6823:12-25. See

also DX3001-015. The dams cannot control the runoff from tributaries flowing into the

7
Each dam, depending on design, can release water from the hydropower facilities through
outlet tunnels or through a spillway when there are extreme releases. Tr. 6829:18-6831:1. On
dams that have spillways, the gates are raised and water passes underneath the gates, down the
spillway structure, and past the dam. Tr. 6841:15-6842:11.
7
River below the dams.8 Id. When heavy rainfall occurs in the downstream tributary

watersheds, the Corps can adjust releases from the mainstem dams to mitigate flooding.

Tr. 6825:10-24, 6826:22-6827:6.

The Corps’ operation of the six mainstem dams is formalized in a Master Manual

which contains “the Corps’ interpretation of its statutory responsibilities and operating

approaches developed in coordination with state agencies and other federal agencies.”

PX16 at PLTF-00003143-4. The Master Manual sets out the Corps’ basic objectives

and plans for operating the System for optimum fulfillment of the 1944 FCA uses. PX8

at FWS_00000095-7. To supplement the Master Manual, the Corps prepares a more

comprehensive Annual Operating Plan (“AOP”) every year. PX16 at PLTF-00003143-

4. The Master Manual’s storage allocations and release procedures are determined from

operational studies of historical River flows and historical flood and drought events.

PX3 at USACE0004001. With regard to flood control, the Great Flood of 1881 is used

for determining the flood control storage and release procedures. Id. at

USACE0003997-8.

To minimize the effects of flooding along the River, the Master Manual calls for

vacant intermediate storage space in each reservoir at the beginning of each annual flood

season, “with evacuation scheduled in such a manner that flood conditions will not be

significantly aggravated if at all possible[.]” PX3 at USACE0004040. See also PX16 at

PLTF-00003143 (quoting the 1979 Master Manual). This means that, historically, the

8
However, tributary dams help to control this flow. See PX17 at PLTF-00007894.
8
Corps has endeavored to have enough space in the reservoirs to store runoff during the

early and later spring snowpack melt and the spring rains to prevent upper Basin

flooding and to avoid releasing the resulting stored water into the lower Basin during

high uncontrolled tributary flows. PX5 at USACE0121591. The Corps’ System

operational objectives and requirements were set forth in Section IX-A of the 1979

Master Manual. PX3 at USACE0004040. Section IX-A also provided for allocation

among the zones. Id. The allocations for each of the zones were carried over to the

revised 2004/2006 Master Manual (later referred to as the new Master Manual), as

discussed infra. PX5 at USACE0121594-6.

In operating the System, the Corps takes into account the effects of the BSNP

structures in providing flood control due to the “interdependence between components”

and because “the overall performance of the infrastructure is critical for [R]iver corridor

and conveyance reliability.” PX555 at USACE3590139. In fact, the Corps’ operation

of the System and its operation and maintenance of the BSNP work hand-in-hand to

provide flood control. Tr. 3983:5-14, 6661:13-16. See also PX390 at USACE0465783.

In the 1979 Master Manual, the Corps expressly provided that flood control was

its first priority and that fish and wildlife were the last priority. PX3 at USCE0004040-

1. In the 1979 Master Manual, fish and wildlife were only to be given consideration

“insofar as possible, without serious interference with the [other] functions[.]” Id. at

USACE0004041. See also PX16 at PLTF-00003144. This order of priorities was

identified in a filing by the United States before the United States Supreme Court, in

which the United States represented that “[t]he 1979 Master Manual sets forth a ‘general

9
approach’ of priorities for the interests served by the Main Stem System. . . . It gives

flood control the highest priority[.]” PX34 at PLTF-00000550. As discussed infra, this

priority approach changed in 2004, when the new Master Manual was issued, and,

again, in 2006, when the Master Manual was revised.

b. The Missouri River Bank Stabilization and Navigation Project

The hydrology of the River was not only transformed by the mainstem reservoirs

and dams but also by the BSNP. Tr. 40:24-41:12; PX18 at PLTF-00005729-3; PX390

at USACE0465790-804. As noted above, the BSNP is a series of river-control

structures the Corps constructed to help with navigation and flood control. PX16 at

PLTF-00003129-30. With the BSNP, there is now a nine-foot deep by 300-foot wide

navigation channel between Sioux City, Iowa and the mouth of the River near St. Louis,

Missouri. PX390 at USACE0465785.

The BSNP achieved channelization and stabilization of the banks by using “an

intricate system of dikes and revetments . . . [which] were designed to provide a

continuous navigation channel without using locks and dams.” PX99 at

USACE0291939. The stabilization of the banks also proved to be indispensable in

providing flood control. Stable banks protected the River “from meander[ing][,] [thus]

promoting floodplain infrastructure.” PX390 at USACE0465802. As such, the BSNP is

an integral part of the Corps’ efforts to provide flood control, with “the BSNP and

related structures hav[ing] effectively become components of the flood risk management

system[.]” PX555 at USACE3590059. Channelization and bank stabilization, however,

have also resulted in disconnecting the Missouri River from its floodplain, altering the

10
River’s natural hydrograph. PX16 at PLTF-00003169; PX99 at USACE0291937.

Specifically, by narrowing and deepening the channel into a fixed location, the BSNP

structures have resulted in the loss of shallow water habitat (“SWH”). PX17 at PLTF-

00007921.

The BSNP structures (dikes and revetments) are commonly constructed of pilings

and rocks. PX390 at USACE0465785. Dikes extend from the bank into the River,

perpendicular or nearly perpendicular to the water flow. PX17 at PLTF-00007921. The

dikes constrict the River channel to a fixed width in order to maintain high-velocity

water flows and to protect the banks from erosion. Id. at PLTF-00007963-4.

Revetments are constructed parallel to the flow of the River, “on and along the channel

bank,” either to establish and protect a bank or to guide a flow consistent with a desired

alignment. Id. These structures have resulted in the narrowing of the Missouri River’s

channel “to as little as one-half to one-third of its original width.” PX17 at PLTF-

00007921.

The BSNP structures stabilized the banks of the River by providing erosion

control and directing the River’s flow to the center of the channel. PX16 at PLTF-

00003129-30. See also DX1089. This promoted scouring of the bottom of the channel,

causing it to grow narrower and deeper, thus increasing the River’s velocity and

resulting in a “self-scouring channel[.]” PX16 at PLTF-00003129-30. The BSNP also

led to the accretion of tillable farmland along the River because the sediment began to

accumulate on the River’s banks, thereby extending the land into what was previously

water. PX99 at USACE0291978. Many of the properties involved in this litigation

11
were created from the above-described accretion.

To further stabilize the River’s banks and channelize the River as part of the

BSNP, the Corps has also eliminated most of the chutes or side channels that existed

naturally in the lower Missouri River.9 PX17 at PLTF-0007905; PX390 at

USACE0465821. The chutes provided some of the channel’s natural lateral migration

that was vital to maintaining the Missouri River Basin ecosystem, but also contributed to

frequent flooding by allowing the River to meander into the floodplain. PX16 at PLTF-

00003159-60. The removal of chutes and side channels was necessary because they

promoted the River’s “braided pattern with no single, distinct river channel,” which

resulted in frequent flooding. PX17 at PLTF-00007903.

Finally, due to the changes to the River created by the BSNP, the River has lost its

natural flood pulses, i.e., “the predictable rising and falling of water in a natural river-

floodplain ecosystem as the principal agent controlling the adaptations of most of the

biota[,]” which is “essential to the health of river-floodplain ecosystems[.]” PX16 at

PLTF-00003162. The BSNP alterations to the fluctuations in the River stages not only

lessened the frequency of flooding, but also lessened the severity and shortened the

duration of the flooding. PX18 at PLTF-00005729. In this connection, the BSNP led to

an alteration in the normal drainage and seepage characteristics of the Missouri River

Basin.10 PX16 at PLTF-00003169-70; PX99 at USACE0291952. As a result, flooding

9
The lower Missouri River in this opinion refers to the portion of the River below the mainstem
dams.
10
“Degradation of the river channel disconnects the river channel from its floodplain. Channel
degradation not only makes it more difficult for the river to overflow its banks, but it also affects
12
from blocked drainage and seepage that had historically led to property damage was

significantly lessened due to “reduced fluctuations in the floodplain [ground]water table.”

PX16 at PLTF-00003169-70.

c. Fish and Wildlife Impacts from the Corps’ Actions Taken Prior
to 2004

While the Corps was very successful in transforming the River for flood control

and navigation purposes, according to the National Research Council (“NRC”) and the

United States Fish and Wildlife Service (“FWS”),11 the Corps’ actions resulted in

significant hydrological and geomorphological changes, primarily due to the loss of

“extreme high and extreme low flows[.]” PX16 at PLTF-00003165. See also PX8 at

FWS_00000136-7. Specifically, before 1900, the Missouri River used to transport

approximately “400 million metric tons per year of sediment from the interior United

States to coastal Louisiana.” PX17 at PLTF-00007909 (citing Meade and Moody, 2009).

The construction and operation of the System and BSNP structures altered the

hydrograph of the River, leading to sediment being scoured faster than it could be

replaced from upstream, thus causing the River bed to erode, a phenomenon known as

“degradation.” PX8 at FWS_00000136. This degradation greatly harmed Missouri River

the floodplain water table. Most importantly, the lack of flooding removes a source of periodic
recharge water for infiltration to the groundwater table. In addition, because the water table (an
alluvial aquifer) is hydrologically connected to the river channel itself, there is a consequent
lowering of this aquifer in association with the lowering (incision) of the river channel.” PX16
at PLTF-00003169.
11
The FWS is responsible for administering the Endangered Species Act (“ESA”). 16 U.S.C. §
1536. As discussed infra, under the ESA the FWS prepares biological opinions setting forth an
agency’s responsibilities to meet its obligations under the ESA. 16 U.S.C. §1538.

13
Basin wildlife, especially certain species of fish like the pallid sturgeon, because the

reduced amount of sediment, together with “the loss of channel chutes, oxbow lakes, and

wetlands[,]” destroyed the natural habitat of those species. PX8 at FWS_00000136-7

(citing Corps, 1981). Additionally, sediment was being trapped behind the dams,

reservoirs, and BSNP structures, “resulting in sediment imbalances and marked channel

incision” that further destroyed Missouri River Basin fish, wildlife, and habitats. PX16 at

PLTF-00003188. See also PX17 at PLTF-00007894, PLTF-00007905, PLTF-00007932;

PX8 at FWS_00000136.

The Corps’ actions are estimated to have led to the destruction of vast numbers of

acreage of Missouri River Basin fish and wildlife habitat, as well as the interruption of

breeding cues. PX16 at PLTF-00003105-6. River channelization, bank stabilization,

levee construction, and inundation have transformed roughly “3 million acres of natural

riverine and floodplain habitat” and have reduced the production of benthic

invertebrates―an important food source for the River’s native fishes―by 70 percent.

Id. Notably, of the 67 fish species native to the Missouri River, “51 are now listed as

rare, uncommon, and/or decreasing across all or part of their ranges.” Id. at PLTF-

00003106. The Corps’ actions have also interfered with habitat needed for various bird

species. Importantly, three species are currently on the federal Endangered Species

List―the Interior Least Tern (Sternula antillarum), the Piping Plover (Charadrius

melodus), and the Pallid Sturgeon (Scaphirhynchus albus)―due to the elimination of

14
what was once a rich, abundant ecosystem.12 Id.

When Congress became cognizant of the damage caused by the construction and

operation of a vast network of dams and related support structures across the United

States, it passed the Water Resources Development Act (“WRDA”) in 1986 to address

that harm. See, e.g., PX390 at USACE0465813; PX17 at PLTF-00007964; PX280 at

USACE1207214. Under the 1986 WRDA, Congress authorized the creation of the

Bank Stabilization and Navigation Fish and Wildlife Mitigation Project (“BSNFWMP”)

to address some of the damage that had been done to the Missouri River Basin

ecosystem. See, e.g., PX17 at PLTF-00007964-5; PX192 at USACE0266545; PX280 at

USACE1207214. The BSNFWMP is now part of the Missouri River Recovery Program

(“MRRP”) which, as discussed infra, is the Corps’ umbrella program for returning the

Missouri River to a more natural state to aid in the recovery of the Missouri River Basin

ecosystem. See, e.g., PX187 at FWS_00305189-90. See also PX110 at

USACE0005085. The BSNFWMP was aimed at mitigating the habitat losses caused

from construction of the BSNP structures by reconnecting the River to its floodplain

through the creation and restoration of habitat areas. The BSNFWMP provided

authority and direction to the Corps to complete projects to mitigate BSNP habitat losses

by returning the River to a more natural state.13 See, e.g., PX94 (report to Congress

12
The 2002 NRC report contains a lengthy description of how the Corps’ actions have led to the
destruction of habitat and threatened and endangered species. As discussed infra, the destruction
is also catalogued in the various Biological Opinions prepared by the FWS. See, e.g., PX9-B;
PX10.
13
The Corps constructed various projects under the BSNFWMP to create and restore habitat.
The Corps also commenced a review of the 1979 Master Manual in 1989 as part of its
15
presenting the results of a study undertaken by the Corps to analyze the cost of

mitigation projects under the WRDAs).

In 1999, the WRDA reauthorized the BSNFWMP and gave the Corps authority

to purchase 166,750 acres from willing sellers, including some of the plaintiffs in this

case, (“Willing Sellers Program”) along the Missouri River in order to replace lost

habitat. The area authorized represented approximately one-third of the habitat lost due

to the Corps’ regulation of the River. PX280 at USACE1207213-5; PX390 at

USACE0465813. Land acquired under the Willing Sellers Program was to be converted

to habitat for native Missouri River species to compensate for the habitat that had been

lost as a result of the BSNP. PX192 at CLMT0304-00000186.

The Willing Sellers Program was the preferred choice for helping to restore the

habitat lost, even though the Corps could have used eminent domain to acquire

easements over private land in the targeted acreage. See, e.g., PX47 at

USACE0000222-6; PX192 at USACE0266545; PX280 at USACE1207215. The

Willing Sellers Program has had some success. As of September 30, 2009, the Corps

has acquired 56,606 acres of the targeted acreage. See PX280 at USACE1207215;

PX610.

The BSNFWMP was further expanded by Congress in the 2003 WRDA, which

was aimed at developing shallow water habitat (“SWH”) for native Missouri River

Endangered Species Act obligations to address the changes that could be made to the System’s
operation to ameliorate some of the damage caused to the Missouri River Basin ecosystem, in
particular in terms of threatened and endangered species.
16
Basin aquatic species, in particular the pallid sturgeon, and emergent sandbar habitat

(“ESH”) for native Missouri River Basin bird species. PX277 at USACE0719805;

PX17 at PLTF-00007957. The SWH program currently extends from Ponca, Nebraska

downstream to the Missouri River’s mouth near St. Louis, Missouri and it aims at

having “in place 20-30 acres of SWH per river mile by 2024.” PX277 at

USACE0719805. The ESH program aimed at having ESH along the entire stretch of

the Missouri River. Specifically, the ESH program’s goal was to have 50 acres of ESH

per river mile below Garrison Dam, 20 acres of ESH per river mile below Fort Randall

Dam, 80 acres of ESH per river mile at Lewis and Clark Lake, and 80 acres of ESH per

river mile below Gavins Point Dam by 2015. PX174 at PLTF-00005901.

3. U.S. Fish and Wildlife Biological Opinions

In addition to responding to the mandates of the WRDA, the Corps was also

being pressured by the FWS to address the harm to the Missouri River Basin ecosystem

the Corps had caused in operating the Missouri River Mainstem Reservoir and Dam

System and in constructing the BSNP. Under Section 7 of the Endangered Species Act

(“ESA”), 16 U.S.C. § 1531 et seq., all federal agencies that permit, fund, or carry out

activities involving fish and wildlife must consult with the FWS to ensure that their

actions will not jeopardize the continued existence of any listed species.14 PX33 at

14
“Jeopardize the continued existence of a listed species” is defined as “to engage in an action
that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of
both the survival and recovery of a listed species in the wild by reducing the reproduction,
numbers, or distribution of that species.” 50 C.F.R. § 402.02.

17
PLTF-00001365. Under Section 7, the Corps may be required to provide a biological

assessment (“BA”) to the FWS, assessing the impact of its actions on threatened and

endangered (“T&E”) species. Id. After filing a BA, the Corps is required to enter into

Section 7 formal consultation with the FWS to determine how best to avoid jeopardy to

the T&E species or prevent destruction or adverse modification of their critical habitat.

PX33 at PLTF-00001365. Thereafter, the FWS is required to issue a Biological Opinion

(“BiOp”) that recommends reasonable and prudent alternatives (“RPA”) to avoid further

jeopardy. Id. See also PX8; PX9-B; PX10. The Corps must follow the BiOp or offer

some alternative measures to comply with the ESA. PX33 at PLTF-00001365. As part

of a BiOp, the FWS will often include an incidental take statement, which allows an

agency, like the Corps, to harm (known as “take”) a limited number of protected species

without triggering the civil or criminal liability provisions of the ESA. 16 U.S.C. §

1539. See also PX33 at PLTF-00001365-6.

Through the issuance of a series of BiOps, starting in 1990, the Corps began

negotiations with the FWS over the changes it would need to make to its System

operations and the BSNP structures in order to prevent further damage to T&E species

and to comply with the ESA. See PX8; PX9-B; PX10. In the 1990 BiOp, the FWS

concluded that the Corps’ “operations of the System [were] likely to jeopardize the

continued existence of the endangered interior least tern . . . and the threatened piping

plover . . . because operations eliminate[d] essential nesting habitat and could result in

the loss of at least 12 percent of the . . . interior least tern population and 22 percent of

the . . . piping plover population[.]” PX8 at FWS_00000092. The FWS also made six

18
recommendations to the Corps, which the Corps never adopted. Id. at FWS_00000144-

8; PX230.

The Corps’ failure to accept the recommendations in the 1990 BiOp led to a new

ESA Section 7 consultation with the FWS about other possible RPA measures the Corps

could take to comply with the ESA. PX230. This consultation gave rise to the 2000

BiOp, which “repeatedly acknowledged that both flow changes and habitat creation

[were] necessary to prevent jeopardy to [T&E] species.” PX117 at PLTF-00000517.

See also PX9-B. The 2000 BiOp recommended an elaborate RPA program “involving a

combination of reservoir operational changes, structural modifications, and non-

structural actions[,]” such as hydrograph and temperature changes, chute restoration,

and floodplain acquisition or easements. PX117 at PLTF-00000517; PX9-B at

FWS_00029104-6, FWS_00029382.

The Corps was also resistant to adopting the FWS’ 2000 BiOp RPAs, believing

the RPAs would cause more flooding. PX231. Specifically, the Corps was concerned

that under the BiOp, there would be more and different types of flooding. PX645. The

Corps was particularly averse to implementing flow modifications recommended by the

FWS because it was concerned they would “pose significant effects to the natural and/or

human environment.” PX15 at USACE0001757. Rather, the Corps proposed a

combination of flow and non-flow measures to meet its ESA obligations, PX15 at

USACE0001762-74, stating:

The Corps is committed to reconnecting the river to its floodplain
wherever possible; however, several conditions must be met to ensure the
goals can be attained. These include: [a]cquisition of necessary real estate

19
 interests (willing seller requirement and easements); [r]eceipt of
appropriate funds; [l]and acquired must allow floodplain reconnection
without induced damages to neighboring lands; and [e]xisting project
purposes such as navigation and flood control are not adversely impacted.
Id. at USACE0001854.

The Corp’s proposal was set forth in a 2003 BA. In response, the FWS issued its

2003 BiOp, providing for a “multi-faceted approach[]” to attaining the habitat

objectives, which included a combination of changes to the System and BSNP. PX118

at PLTF-00008890. See also PX10. This back and forth between the Corps and FWS

continued into 2004 with the two agencies still not able to reach an agreement as to the

System and BSNP changes necessary to meet the Corps’ obligations under the ESA.

4. Multi-District Court Litigation

Numerous lawsuits were brought against the Corps by various Missouri River

Basin states, environmental groups, and other Missouri River Basin stakeholders to

force the Corps to make changes to its management of the Missouri River. In 2002, the

Eighth Circuit addressed some of those claims in South Dakota v. Ubbelohde, 330 F.3d

1014 (8th Cir. 2003). In the meantime, American Rivers had filed a lawsuit seeking the

Corps’ compliance with the ESA. American Rivers v. USACE, 271 F. Supp.2d 230

(D.D.C. 2003). Ultimately, the pending cases against the Corps, including American

Rivers and Ubbelohde, were consolidated by the Federal Judicial Panel on Multi-District

Litigation before the U.S. District Court for the District of Minnesota. In re Operation

of the Mo. River Sys. Litig., 363 F. Supp.2d 1145 (D. Minn. 2004) (“MDL case”). The

purpose of the consolidation was to determine, inter alia, whether the Corps had to

comply with the ESA by following the 2003 FWS BiOp. Id.

20
 The MDL Court recognized that the Corps’ simultaneous compliance with the

Flood Control Act (“FCA”) and the ESA was problematic on its face because

management actions that benefited one would likely and predictably harm the other. Id.

at 1175. Nevertheless, the Court ultimately denied the Corps an extension to try and

reconcile its obligations under both statutes. PX108 (In re Operation of the Mo. River

Sys. Litig., 305 F. Supp.2d 1096 (D. Minn. 2004)). As a result, on February 26, 2004,

the Court ordered the Corps to revise its 1979 Master Manual by March 19, 2004, to

address the 2003 BiOp directives to come into compliance with the ESA. Id.

As ordered by the MDL Court, on March 19, 2004, Brigadier General William T.

Grisoli, who was the Corps General responsible for the Corps’ management of the

Missouri River, signed the Record of Decision (“ROD”), which, inter alia, adopted a

new Master Manual. PX114. Before signing the ROD, General Grisoli reviewed the

March 2004 Final Environmental Impact Statement (“FEIS”) the Corps had prepared to

evaluate the changes to the Master Manual. Id. In the ROD, the Corps expressly stated

that both the 2004 FEIS and the 1944 FCA did not assume a priority of purposes in the

operation of the System, but it recognized that “there may be occasions where conflicts

[will] exist between the individual authorized purposes.” Id. at PLTF-00000537. To

ensure compliance with the ESA, the Corps committed to implementing all elements of

the 2003 BiOp and agreed to changes in the operation of the System and the operation

and maintenance of the BSNP. PX116. See also PX799.

5. The Corps System and River Changes After 2004

This litigation arises from the changes the Corps has made to its operation of the

21
Mainstem Reservoir and Dam System, hereafter “System Changes,” and the changes

made to the BSNP and under the MRRP, hereafter “River Changes,” to meet its ESA

obligations under the 2003 BiOp. Together, these changes are referred to as “System and

River Changes.” Set forth below is a description of those System and River Changes.

The court’s findings regarding whether these System and River Changes caused flooding

or made flooding more severe than would have otherwise occurred without the System

and River Changes is discussed in the Liability Findings (Expert Testimony) section of

this opinion. The court’s findings regarding the impact of flooding on the individual

plaintiffs are in the section of the opinion on Individual Plaintiffs.

The System and River Changes that have been made to comply with the ESA are

numerous and are constantly evaluated and evolving. The new Master Manual issued on

March 19, 2004 provided that “[d]ecisions concerning implementation of additional

measures or modification of existing measures, including potential release changes out of

Gavins Point Dam, [would] be made through the adaptive management process.” PX114

at PLTF-00000540. Importantly, to comply with the ESA, the Corps must always

consider the impact of other FCA-authorized purposes on fish and wildlife because “[t]he

Endangered Species Act has a higher precedence than other authorized purposes.”

PX324 at USACE0328103. Thus, adaptive management does not give the Corps

unfettered flexibility. Rather, it is an approach that “promotes carefully-designed

management actions, assessment of these actions’ impacts, and subsequent policy

adjustments.” PX16 at PLTF-00003210. It aims at “maintain[ing] or restor[ing]

ecosystem resilience,” i.e., an ecosystem’s ability “to persist and adapt over time in the

22
face of natural and anthropogenic challenges.” Id. For example, the creation and

monitoring of each SWH and ESH project is a component of the adaptive management

approach adopted by the Corps.

The Corps’ commitment to complying with the ESA is also reflected in the

changes made to the Corps’ operating budget. PX701. See also PX860; PX860-A;

PX860-B. Prior to the ROD, the Corps was spending proportionally far more on the

other FCA-authorized purposes than on fish and wildlife. However, compliance with the

2003 BiOp under the ROD represented a significant change in the Corps’ management of

the River as reflected by its spending. PX701. See also PX860; PX860-A; PX860-B.

For example, the Corps’ fish and wildlife mitigation budget increased from $17.5 million

in 2003 to $69 million and $82.8 million in 2005 and 2006, respectively. PX860-A. This

represents a significant change in the focus of the work the Corps was doing in managing

the River—from flood control to River restoration work. PX701. See also PX860;

PX860-A; PX860-B.

a. System Changes after 2004

The Master Manual issued in 2004 to comply with the ESA had called for greater

releases in the Spring (“Spring Pulse”) than the Corps was prepared to make and so the

Corps instead, with the FWS’ approval, embarked on an “unprecedented” SWH

construction program in 2004 as an alternative means of promoting ESA compliance.

PX123 at USACE0510835. See also Tr. 217:5-24, 490:13-491:9, 2374:11-2379:16,

3737:7-25, 4283:3-16, 8272:6-8273:24, 10371:9-16; PX114; PX115. The Master Manual

was revised in 2006 to reflect the Corps’ approach. Both the 2004 and 2006 Master

23
Manuals, hereafter the “new Master Manual,” struck the language in the 1979 Master

Manual providing a sequential priority of the FCA-authorized purposes in operating the

System. Instead of giving flood control first priority and fish and wildlife last priority,

the new Section VII.7-01 of the Master Manual provides that, in operating the System,

the Corps will “balance [the FCA] functions in order to obtain the optimum development

and utilization of the water resources of the Missouri River basin to best serve the needs

of the people.” PX4 at USACE0002644; PX196.

The new Master Manual also contains two significant operational guidelines that

are at issue in this litigation. First, the new Master Manual authorizes the Corps to keep a

larger amount of water in the reservoirs for the benefit of other purposes, including fish

and wildlife. PX117-A at PLTF-00008836; PX756. In this connection, the Corps

acknowledges that during years of high early runoff from rain and snowpack melt above

the System dams, if the System does not have enough storage to impound all of the

runoff, the Corps may have to choose between making higher early releases, even if that

would likely wash away nesting birds and contribute to early flooding downstream, or

holding more water in the reservoirs and hope that spring rains are below normal. See,

e.g., PX10; Tr. 4620:5-4626:22.

Second, the new Master Manual addresses the need to return the River to having

more varied river stages for the benefit of T&E species. Under the new Master

Manual, water is released from the dams when needed to prevent the least tern and

piping plover from nesting on low-lying areas, which can be later washed away, and to

provide spawning cues for the pallid sturgeon, hereinafter referred to as “T&E

24
 releases.” Tr. 6959:11-16, 6964:24-6965:5. Although the Corps is not required to

conduct the once-proposed Spring Pulse, the Corps consults with the FWS throughout

the nesting season to determine the extent of releases necessary to comply with the

BiOp.

As discussed infra, for each of the years of flooding, except for 2011, the Corps

made T&E releases during periods of high River flows with the knowledge that flooding

was taking place or likely to soon occur.15 In 2010, for example, the Corps made

releases for T&E species despite receiving direct communications from Corps personnel

regarding flooding already in progress in the lower River. PX967. The response from

Corps personnel responsible for the System was that the releases were needed for the

benefit of the least tern and piping plover. Id. This happened again in 2015. PX2308.

b. River Changes After 2004

To coordinate the various Corps projects needed to restore the River to a more

natural state, i.e., before it was so highly engineered, the Corps established the Missouri

River Recovery Program (“MRRP”). PX110 at USACE0005085. In carrying out the

objectives of the MRRP, the Corps, as it does with its T&E release decisions, has

partnered closely with the FWS. See, e.g., PX187; PX911 at PLTF-00018455; DX576

at USACE0089347. The MRRP coordinates the Corps’ authority under: (1) the 1986

15
The government presented expert testimony from Mr. Woodbury who calculated the
percentage of flow attributable to releases from Gavins Point Dam during the relevant periods of
flooding in 2007, 2008, 2010, 2013, and 2014 at key gages below Gavins Point Dam. In 2007
and 2008, contributions from Gavins Point Dam ranged along the River from five to fifteen
percent. In 2010, the range was from 15 to 20 percent. For 2013 and 2014, the contributions
ranged from 10 to 30 percent. See Def.’s Br. at 99-100; DX3015.
25
and 1999 WRDAs; (2) the 2003 BiOp; and (3) the 2007 WRDA. PX390 at

USACE0465813. As part of the 2007 WRDA, Congress authorized the Missouri River

Recovery Implementation Committee (“MRRIC”) to provide guidance to the Corps

from the affected community on its MRRP activities and projects. PX17 at PLTF-

00007956.

To accomplish the MRRP objective of restoring the Missouri River to a more

natural state, the Corps has modified BSNP structures and has reopened previously

closed chutes to create shallow water habitat (“SWH”). As explained infra, Corps

studies explain that as of 2014, the Corps had undertaken 1,697 dike notching actions,

354 major modification actions, 63 dike lowering actions, 36 dike extension actions, 39

side-channel chute actions, 20 revetment chute actions, 14 backwater actions, and 3

channel widening actions. PX277 at USACE0719815.

The Corps has also undertaken work to reopen the natural chutes it had removed

years ago. PX169. The Corps has acknowledged that in undertaking these BSNP

modifications, it is destabilizing the banks of the River, allowing it to meander into the

floodplain, as it had been allowed to do in its natural state.16 See, e.g., PX98 at

USACE0090827; PX390; PX911. The Corps has also recognized that in reopening

chutes, there are potential flooding impacts. See, e.g., PX911 at PLTF-00018460-1. See

also Tr. 9243:7-9245:20, 9499:7-9501:4, 9538:8-9540:23, 10872:16-10873:1. In the

16
“To achieve significant amounts of SWH, it will be necessary to erode real estate to increase
the river’s top-width.” PX98 at USACE0090827.

26
environmental reviews for reopening chutes, however, the Corps has clearly stated the

need for minimizing flooding impacts. See, e.g., DX0286 at USACE5031174,

USACE5031192.

As discussed in greater detail infra, the creation of SWH “involves reclaiming

areas that were historically part of the active [R]iver channel but were converted to land

by the sediments trapped by the BSNP.” PX390 at USACE0465814. Because these

endangered species “depend on bare sandbars for successful nesting and fledgling[,]”

which are limited along the Missouri River, the Corps has been increasing the amount of

ESH “by creating new sandbars largely from dredged material and by clearing

vegetation from existing sandbars.” PX17 at PLTF-00007965-6.

As also discussed in detail infra, the evidence has established that River Changes

by the Corps, such as the aggradation of sediment from notching and the degradation of

dikes and revetments, have had the effect of raising the Missouri River’s water surface

elevations (“WSEs”) in periods of high flows. See, e.g., PX2089-A; Tr. 4754:22-

4777:14, 4793:23-4794:23, 4838:9-4839:19, 10544:19-10545:18. In 2011, the NRC

reported that both SWH and ESH programs affect the amount of sediment transported

and thus have repercussions “for sediment loadings and transport and therefore for

channel morphology and habitat maintenance.” PX17 at PLTF-00007979. More

specifically, the NRC reported that although sediment transported across the Missouri

River Basin “has value for habitat formation[,] [it] has both positive and negative

influences on infrastructure.” Id. The NRC explained that the BSNP “structures make it

difficult to establish and maintain complex channel and floodplain habitats that depend

27
on the temporary storage and frequent alteration of sediment accumulations in the form

of channel bars and off-channel water bodies.” Id. at PLTF-00007981-2. This is

because these structures are aimed at facilitating “a narrower and more rapid flow that

scours a deeper and less complex channel[,]” resulting in greater flood control. Id. at

PLTF-00007982. As such, the NRC reported that changing the River to create SWH

and ESH will likely lead to increased flooding of homes, farms, and infrastructure

(transportation, telecommunications, power) within the floodplain. Id. at PLTF-

00007982. The NRC recognized that the impacts on homes and farms would likely be

greatest during high-water events. Id. See also PX911. The NRC concluded that “a

reversal of tradeoffs that would favor ecosystem restoration may . . . [result in] winners

and losers in a new operations scheme who will need to be carefully considered and

perhaps compensated.” PX16 at PLTF-00003209 (emphasis added).

6. Flooding on the Missouri River After 2004

As discussed above, in its pre-regulated state, the Missouri River regularly

flooded. The periods of flooding after the System and BSNP structures were

constructed have been less frequent and less severe. Between 1967, when the System

was completed, and 2004, there was some limited flooding in the 1980s and one

significant flood in 1993. The period from 2000 to 2006 was largely a period of drought

on the River. Flooding on the River returned, starting in 2007. In fact, 2007, 2008,

2010, 2011, 2013, and 2014 have been among the worst flooding years in the River’s

history. PX2008. The evidence established that 2009 and 2012 were drought years.

The plaintiffs’ takings claims are based on flooding in 2007, 2008, 2010, 2011, 2013,

28
and 2014. The year 2014 was selected as the cut-off year for purposes of proving

flooding by the Corps’ System and River Changes; however, some plaintiffs have

continued to experience flooding. The plaintiffs claim that there is now a pattern of

increased flooding caused by the Corps’ System and River Changes. The court allowed

testimony regarding flooding in 2015 and 2016 for purposes of establishing a pattern.

Set forth below is a brief description of the flooding on the Missouri River for the

years in question. There is no dispute that the flooding at issue in this litigation has

occurred in the context of high River flows that were naturally occurring during periods

of high precipitation or high tributary inflows, except for the flood in 2011. The United

States concedes that none of these higher flows and the associated weather that caused

them are an intervening cause that breaks the chain of causation presented by the

plaintiffs regarding the System and River Changes. Tr. 14293:16-24. The government

contends that none of the Corps’ actions have caused higher WSEs on the River than

would have existed without these actions. The plaintiffs contend that the System and

River Changes have caused higher WSEs on the River than would have existed had the

System and River Changes not been made. The plaintiffs also contend that the higher

WSEs were a foreseeable consequence of the System and River Changes and led to the

flooding and takings claims at issue in this case.

a. Flooding in 2007

Out of the 113 year historical record the May 2007 regional precipitation in

South Dakota ranked 104 wettest and in North Dakota ranked 108 wettest. DX3015-28.

However, the System storage on March 1st was 22.7 million acre feet (“MAF”) below

29
the base of the annual flood control zone, and the upper three reservoirs were 31 to 34

feet below normal. Tr. 7157:3-8; DX0480. That year, the Corps conducted System

releases for the benefit of T&E species, which added flow to the River during a period

when the River was lower.17 Tr. 4557:24-4558:1, 7160:4-20; DX3001-243.

b. Flooding in 2008

In April through June 2008, Iowa experienced very heavy rainfall leading to the

wettest record in 114 years. Tr. 10796:20-10797:5; DX3015-29. Heavy and

unprecedented rains were also recorded in Montana, South Dakota, Nebraska, and

Missouri. Tr. 10797:6-13, 13500:12-14; DX3015-29; DX0094. System storage on

March 1st was up from 2007, but still below the normal start of the runoff season, and

the upper three reservoirs were 26 to 35 feet below normal levels. Tr. 7161:15-20;

DX0481. The Corps conducted System releases for the benefit of T&E species that

were higher than those in 2007. Tr. 4574:9-16, 7163:18-7164:5; DX3001-247. These

releases also added flow during a period of lower Basin flooding.18

c. Flooding in 2010

During the spring and summer of 2010, the Missouri River and its tributaries

experienced extensive flooding caused by heavy spring rainfall and heavy plains

snowpack. Tr. 1292:7-12, 1561: 21-23, 2845:22-2846:2, 2967:15-19, 3505:15-20,

3452:5-7, 7187:9-7189:16. There was very heavy rainfall in Iowa, Nebraska, and South

17
See fn. 15. In 2007, the releases from Gavins Point Dam contributed five to ten percent of the
flow.
18
See fn. 15. In 2008, the releases from Gavins Point Dam contributed five to fifteen percent of
the flow.
30
Dakota from May through July 2010. Tr. 10797:14-10798:2; DX3015-30. As a result,

runoff during 2010 was 156 percent above normal, generating the third highest runoff at

that time in the last 65 years in St. Joseph. Tr. 10806:14-15; DX0483 at

USACE0014563. Nevertheless, the Corps conducted T&E releases which contributed

to the flooding.19

d. Flooding in 2011

In 2011, runoff and rainfall in the upper Basin was unprecedented in magnitude

and duration. The untimely combination of events caused record WSEs and extensive

flooding in the upper and lower Basin from June through August. Tr. 13858:16-

13859:2. During the winter and spring of 2011, record snow fell across a large portion

of the northern Rocky Mountains and eastward into the Northern Plains. Id. See also

Tr. 10798:14-10799:9; DX3015-32. A cool spring held snowpack in place later than

usual, and a rapid snowmelt coincided with record-setting rains in May and early June

over Montana and western North Dakota. Tr. 13843:1-13848:2, 13853:1-6; DX3007-

07. Despite summer drought conditions in the lower Basin, it was extremely wet in

portions of Montana, Wyoming, Colorado, and the Dakotas. Tr. 13500:20-13501:2;

DX0094. In addition to record highs in mountain snow water equivalent, May

precipitation was 400 percent above average in the Basin, while runoff was 320 percent

above average above Sioux City. Tr. 13843:1-13844:4, 13847:13-13849:14; DX3007-

07; DX0192 at DX0192-0044. The high snowpack and delayed snowmelt contributed

19
See fn. 15. In 2010, the releases from Gavins Point Dam contributed 15 to 20 percent of the
flow.
31
to a May to July runoff in the upper Basin that was twenty percent higher than the

previously highest runoff ever recorded in 1997. Tr. 13853:1-6; DX0192 at DX0192-

0054, DX0192-0060, DX0192-0067. The runoff in 2011, totaling 61 MAF, was the

highest in the upper Basin since 1898, at 247 percent above normal levels. Tr. 7115:25-

7116:5; DX0484 at USACE0014651. Upper Basin runoff was 25 percent greater than

the next highest runoff year, i.e., 1997. Tr. 7117:16-7117:25.

Although the System storage on March 1st was 57.6 MAF, all 2010 runoff had

been released and the runoff season was at the base of the annual flood control zone by

January 27th. Tr. 7098:8-17, 7137:13-7138:17; DX0484. In 2011, there were no T&E

releases because the Corps had downstream flood control concerns. Tr. 7122:8-22. The

massive releases in 2011 starting in May were taken when Corps personnel determined

that the record runoff levels in the upper Basin were putting the entire mainstem System

in jeopardy. In response, the Corps released a record 160,000 cubic feet per second

(“cfs”) from Gavins Point Dam for 65 days with higher than normal releases continuing

until October. DX0192 at DX0192-0047-8. Previously, the record had been 70,000 cfs

released in 1997. Tr. 7392:13-15.

e. Flooding in 2013

A drought developed in 2012 that remained over much of the Missouri River

Basin in early 2013. Tr. 7202:1-4. System storage on March 1st was 8.3 MAF below

the normal start of the runoff season, and the upper three reservoirs were 10 to 12 feet

below normal levels. Tr. 7202:11-17; DX0484. Heavy localized rainfall later in the

year in Nebraska, Missouri, Kansas, and Iowa resulted in high flows downstream of

32
Nebraska City.20 Tr. 7203:8-20. Despite these higher downstream flows in late May

and early June, the Corps continued to make T&E releases which contributed to the flow

during the highest flow periods. DX3015-227; DX3015-308; DX3015-406; DX3015-

561.21

f. Flooding in 2014

In 2014, there was high runoff in the upper Basin and low runoff in the reach

between Sioux City and St. Louis. Tr. 7205:2-18; DX3001-276. June, however, saw

heavy rainfall in the lower Basin, with the Sioux City runoff being 140 percent above

normal levels. Tr. 7205:14-15, 7206:22-7207:9; DX0536 at USACE7739484; DX0094.

The System storage on March 1st was 5.4 MAF below the normal start of the runoff

season, and the upper three reservoirs were five to 12 feet below normal levels. Tr.

7205:20-24; DX0536. Although the Corps reduced Gavins Point Dam releases to a

minimum 10,000 cfs in response to the June rainfall, it maintained its T&E releases,

which coincided with the highest downstream flows. Tr. 4649:22-4651:1.22

II. Legal Standards

1. Causation

20
For instance, the Big Nehama River had the second highest flows of record. Tr. 7203:8-14;
DX3001-275. May rainfall in the lower Basin was also above normal. Tr. 10799:12-14;
DX3015-33; DX0094.
21
See fn. 15. In 2013, the releases from Gavins Point Dam contributed 20 to 30 percent of the
flow.
22
See fn. 15. In 2014, the releases from Gavins Point Dam contributed 10 to 20 percent of the
flow.
33
 The threshold issue to be decided in this case is whether plaintiffs can establish

that the Corps caused the flooding upon which plaintiffs base their takings claims.

Plaintiffs assert that they may prove causation based on the cumulative and combined

effects of the Corps’ System and River Changes. Specifically, they argue that if they can

prove that “but for” the Corps’ System and River Changes, the flooding in the years

identified would not have occurred or been as severe, they will have met their causation

burden. Plaintiffs argue that they are entitled to prove causation by demonstrating that

the numerous actions the Corps has taken to “retransform” the Missouri River from a

highly engineered river to a more natural state for the benefit of T&E species has led to

increased and more severe flooding. In support of their approach to causation, the

plaintiffs point to the numerous System and River Changes discussed above in the

Background Facts section which were taken to meet the Corps’ ESA obligations under

the 2003 BiOp. The plaintiffs cite to evidence, largely taken from government

documents and testimony, which catalogues the Corps’ River Changes after 2004,

including the reopening of chutes, the creation of ESH, and the construction of SWH.

They also rely on evidence, again primarily from government documents and testimony,

which shows how the Corps has made System Changes to meet its ESA obligations by

releasing water from the dams during periods of high River flows to protect and promote

T&E species.

The plaintiffs contend that their reliance on the cumulative and combined effects

of the Corps’ System and River Changes to establish causation is consistent with the

“single-purpose analysis” that the Federal Circuit approved in Arkansas Game & Fish.

34
Pls.’ Br. at 96 (citing Ark. Game & Fish Comm’n v. United States (“Ark. Game & Fish

III”), 736 F.3d 1364, 1370 (Fed. Cir. 2013) (determining that because the Corps’ yearly

deviations from its water-management plan “were directed to a single purpose”

(benefiting agricultural interests) and “had a consistent overall impact on the

Management Area[,]” it is appropriate to view the flooding as lasting for seven years).

The plaintiffs assert that in Ark. Game & Fish III, the Federal Circuit “recognized that

flooding that is alleged to have occurred because of [the] Corps[’] actions done for a

single purpose are to be analyzed as one continuous flood or on a macro basis, not as

individual floods.” Pls.’ Resp. at 3 (citing Ark. Game & Fish III, 736 F.3d at 1370). The

plaintiffs argue that in cases where “there is a ‘single purpose’ for the Corps’ actions that

are alleged to have caused the flooding, in determining whether there has been

appropriation of property, the Court must assess the collective effects of all the MRRP

flooding resulting from that single purpose[.]” Pls.’ Br. at 95-6 (citing Ark. Game & Fish

III, 736 F.3d at 1370).

The plaintiffs contend that the government’s assertion that to prove causation the

plaintiffs had to isolate each individual Corps action and connect that action to each

separate flooding event on an individual property is not supported. The plaintiffs explain

that this court has long recognized that a taking can be established based on a series of

different government actions taken for a single purpose. The plaintiffs point to Cotton

Land Co. v. United States, where the plaintiffs maintain that the court held that “a

sequence of events acting in concert” and which result in the physical occupation of

property can establish a taking. Pls.’ Resp. at 22 n.10 (relying on Cotton Land, 75 F.

35
Supp. 232, 233 (Ct. Cl. 1948) (finding that a taking had occurred, although the injury

occurred years after the initial act of constructing the dam, when a dam caused sediment

to deposit in the riverbed upstream of the dam, and over time, the sediment raised the

riverbed and water level until the river overflowed its banks and flooded the plaintiff’s

property. The court rejected the government’s defense that the erection of the dam was

too remote a cause on which to base liability because the flooding did not occur directly

from the erection of the dam but through a chain of events). The plaintiffs also rely on

Avery v. United States, 330 F.2d 640, 644-45 (Ct. Cl. 1964) and Cary v. United States,

552 F.3d 1373, 1379 (Fed. Cir. 2009). Finally, plaintiffs argue that if the government’s

theory of causation is adopted and plaintiffs are required to prove how each individual

action of the Corps caused or increased flooding on each individual property for each

separate flooding event, no plaintiff could muster the evidence to prove a case because it

would be impossible to separate out each action and pinpoint the precise cause of

flooding.

The government argues that the plaintiffs’ reliance on the cumulative and

combined effects of the Corps’ System and River Changes to prove causation should be

rejected on the grounds that “[p]roving causation in a takings claim requires a detailed

analysis of the property in question including quantifying the alleged harm directly

attributable to a precise government action.” Def.’s Resp. at 4. The government asserts

that “‘several distinct actions viewed in concert’ are ‘too broad’ to properly allege a

takings claim.” Id. (quoting Acceptance Ins. Cos. Inc. v. United States, 584 F.3d 849,

855 (Fed. Cir. 2009)). According to the government, plaintiffs bear the burden to

36
pinpoint “the precise step in a sequence of events that constitutes conduct the government

cannot engage in without paying compensation.” Id. The government also argues that

the plaintiffs’ reliance on Cotton Land is misplaced, on the grounds that the case involved

only one governmental action, i.e., the impoundment of water behind the dam, whereas

here the Corps has taken numerous actions.

The government further argues that a single-purpose flood theory is inapplicable

here, on the grounds that, unlike Arkansas Game & Fish, “this case does not involve a

single set of discrete water control manual deviations proactively made to serve a single

purpose and affect[ing] a single parcel for a multi-year period, and even [p]laintiffs do

not contend that the Corps’ actions are the sole cause of the various flood events” at

issue. Def.’s Resp. at 7. The government argues that here “the various actions the Corps

has undertaken pursuant to the [new] Master Manual . . . and MRRP have varied each

year and served multiple purposes.” Id. (citing Def.’s Post Trial Brief (“Def.’s Br.”). at

8, 14-6, 35-44). The government also asserts that the plaintiffs allege different amounts

of flooding in different years. Id. at n.9 (citing Def.’s Br. at Tables 3-7, Columns A, I

(flooding at different properties); Pls.’ Br. at Table A (varying amounts of flooding on the

properties)). For all of these reasons, the government argues that plaintiffs are required to

prove how individual actions of the Corps caused or increased flooding at each plaintiffs’

property for each separate flooding event.

The court has considered the parties’ arguments regarding the proper law to apply

and concludes for the reasons that follow that the plaintiffs’ causation theory is supported

and is the appropriate theory to apply in this case. Specifically, the court agrees with

37
plaintiffs that an individual plaintiff can meet the causation burden if that plaintiff can

prove that: (1) the Corps’ System and River Changes were made for a single purpose; (2)

the cumulative and combined effects of the System and River Changes made for that

single purpose led to higher WSEs than would have existed without the System and River

Changes; and (3) the higher WSEs led to flooding, or more severe flooding on the

property owned or farmed by that individual plaintiff than the flooding the plaintiff

would have experienced without the Corps’ System and River Changes.

First, the court finds, contrary to the government’s contentions, that this case is

similar to Arkansas Game and Fish. The Federal Circuit found that “[t]he government

cannot obtain an exemption from takings liability on the ground that the series of interim

deviations were adopted on a year-by-year basis, rather than as part of a single multi-year

plan, when the deviations were designed to serve a single purpose and collectively caused

repeated flooding and timber loss on the Commission’s property.” Ark. Game & Fish III,

736 F.3d at 1370 (emphasis added). Based on the reasoning in Ark. Game & Fish III, the

court finds that it is proper to consider the series of changes made by the Corps for a

single purpose—here, meeting the Corps’ ESA obligations—to determine whether those

System and River Changes have caused flooding that would not have occurred without

those System and River Changes.

Second, the court’s conclusion is consistent with other cases in this court

involving flooding. For example, in Turner v. United States, the United States Claims

Court held that the “plaintiffs have demonstrated that authorized actions of the

Government resulted in the taking of an easement on their property for periodic

38
inundation through flooding.” Turner v. United States, 23 Cl. Ct. 447, 460 (1991). The

court found that “there is a causal connection between the Corps’ activities and the

damage to plaintiffs’ land.” Id. at 455 (emphasis added) (footnote omitted). In that case,

the court concluded that channelization had resulted in higher flow velocity and flood

stages, which had subsequently led to the transfer of greater amounts of sediment that

“raised the river stage along the channel adjacent to plaintiffs’ land.” Id. The court

explained that “[o]ver time, the process had occurred to such an extent that the

tremendous flows captured in the upper reaches of the creek could no longer be contained

in the now shallower lower reaches. This was exacerbated by the damming effect of the

sediment deposits at the East Fork.” Id. (footnote omitted). The court analyzed multiple

Corps actions, and the plaintiffs did not have to pinpoint the specific Corps’ action(s) that

caused the flooding on their property. It was, as these plaintiffs would say, the

“combined and cumulative” impacts of the Corps’ actions over time that constituted a

taking.

Third, the court also finds, as plaintiffs contend, that the government’s reliance on

Acceptance is misplaced. Acceptance is a regulatory takings case and the United States

Supreme Court has made clear that the “longstanding distinction between acquisitions of

property for public use, on the one hand, and regulations prohibiting private uses, on the

other, makes it inappropriate to treat cases involving physical takings as controlling

precedents for the evaluation of a claim that there has been a ‘regulatory taking,’ and vice

versa.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302,

323 (2002) (footnote omitted).

39
 Finally, the court also agrees with plaintiffs that if the court were to require each

plaintiff to prove causation with evidence of how each of thousands of Corps’ System

and River Changes individually led to flooding or increased flooding on their property for

each flooding event, no plaintiff would be able to prove causation.

2. Foreseeability

The standards for proving foreseeability in a takings case are well settled. In this

case, to prove foreseeability, the plaintiffs must show either (1) that the Corps intended to

take plaintiffs’ property interests by its actions in making the System and River Changes

it instituted to comply with the ESA or (2) that the invasion of the plaintiffs’ property

interests was the ‘“foreseeable or predictable result”’ of the Corps’ System and River

Changes. Ark. Game & Fish III, 736 F.3d at 1372 (quoting Moden v. United States, 404

F.3d 1335, 1343 (Fed. Cir. 2005) (determining that an injury is “the direct, natural, or

probable result” when the injury was “the foreseeable and predictable result of the

authorized [government act].”)). See also Ridge Line, Inc. v. United States, 346 F.3d

1346, 1355 (Fed. Cir. 2003); Cary v. United States, 552 F.3d 1373, 1377 (Fed. Cir.

2009).

Here, the plaintiffs acknowledge that the Corps did not intend to invade each

plaintiff’s property interest. Rather, the plaintiffs argue that they can establish their

takings claims by proving that the flooding which invaded their properties was the

“direct, natural and probable result” of the Corps’ System and River Changes. Pls.’ Br. at

85 (citing Moden, 404 F.3d at 1343; Cary, 552 F.3d at 1377). The plaintiffs also assert

that in meeting their burden, it is not necessary for plaintiffs to establish that flooding was

40
the direct, natural, and probable result of each individual System and River Change taken

by the Corps. Pls.’ Br. at 87-9. Rather, plaintiffs argue, as they did with regard to

causation, that so long as the Corps’ actions have a ‘“single purpose[,]”’ foreseeability

should be judged taking all of the Corps’ System and River Changes into account. Id. at

87 (quoting Ark. Game & Fish III, 736 F.3d at 1370). In this regard, the plaintiffs

maintain that by endeavoring to restore the River and by making System releases to

benefit T&E species, the Corps knew or should have known that the River’s flooding

pattern would change and that more flooding would occur. Id. at 4, 52-3, 90-1.

The plaintiffs assert that foreseeability, or determining whether flooding was the

direct, natural, and probable result of the Corps’ System and River Changes, is

determined based on an objective, not subjective, test. Id. at 86-7 (citing Ark. Game &

Fish III, 736 F.3d at 1372-3). Plaintiffs point to “extensive evidence” in the form of

government reports, records, and studies, as well as the testimony of government

witnesses before Congress that, at the time the Corps was considering the System and

River Changes it needed to make to comply with the ESA, the Corps knew or should

have known that additional flooding would likely result. Pls.’ Br. at 91; PX16 at PLTF-

00003207-9 (“There will be potential for flood damage on properties that are near the

channel. … There may be drainage problems on some floodplains that have been

converted to agricultural, industrial, or domestic uses.”). See also PX96 at

USACE0070654; PX99 at USACE0291869 (“Based on input from public scoping, the

following issues will be addressed either generally or through a specific evaluation in the

SEIS. . . . Increased flooding on adjacent private lands[;]. … Impacts to levees and flood

41
control structures[.]”); PX324 at USACE0328101 (“Any changes in the management of

the [R]iver will result in a wide variety of impacts to authorized purposes. Meeting the

requirements of the [ESA] will require some sacrifice by other purposes that have

benefited in the past to the detriment of listed species.”).23

The plaintiffs also contend the fact that the Corps did not undertake a

comprehensive study to determine the cumulative and combined impacts of its proposed

System and River Changes on raising WSEs in the River argues in favor of finding

foreseeability under Arkansas Game & Fish III, because foreseeability, according to the

plaintiffs, “encompass[es] not only what the Corps knew at the time it authorized the

MRRP about the flooding impacts of the MRRP, but what it could have known had it

conducted a reasonable investigation concerning those impacts.”24 Pls.’ Br. at 86 (citing

Ark. Game & Fish III, 736 F.3d at 1372-3 (upholding the Federal Court of Claim’s

finding that the flooding was foreseeable because “a reasonable investigation by the

Corps of Engineers prior to implementing the deviations during the 1993–2000 period

would have revealed that the deviations would result in a significant increase in the

number of days of flooding in the Management Area during the growing season.”); Ridge

Line, 346 F.3d at 1357 (citing Cotton Land Co., 75 F. Supp. at 233-4 (mentioning that

23
See PX566; PX911; Tr. 217:25-219:8, 223:5-20, 227:24-228:9, 1114:6-9, 1117:14-1118:6,
1145:4-1149:2, 13140:1-8, 13169:25-1370:11, 13261:2-22, 3042:22-3044:20, 3191:11-3192:10,
5741:19-5742:17.
24
The government acknowledges that “[a]n agency’s reasonable investigation into the results of
a complained-of action before it takes that action can bear on whether a result was foreseeable.”
Def.’s Br. at 79 (citing Ark. Game & Fish III, 736 F.3d at 1373).
42
“[i]f engineers had studied the question in advance they would, we suppose, have

predicted what occurred.”)).

The government agrees that to prove foreseeability plaintiffs do not have to prove

that the government intended to flood their properties but only that that flooding was the

“direct, natural, or probable result of authorized [g]overnment activity.”25 Def.’s Br. at 5.

The government contends, however, that “[t]he United States is only liable for a taking

for damages ‘directly attributable to government action,’ not secondary or contributory

factors that caused damage.” Id. at 77 (quoting Bartz v. United States, 633 F.2d 571, 593

(Ct. Cl. 1980)). According to the government, “[t]his ‘direct attribution’ occurs if the

injury is the ‘direct, natural, or probable result of an authorized activity and not the

incidental or consequential injury inflicted by the action,’ as incidental and consequential

injuries of an action lie in tort.” Id. (quoting Ridge Line, 346 F.3d at 1355). The

government also argued that foreseeability must be determined as of the time of the

governmental action alleged to have taken the property and thus the government argues

that plaintiffs’ failure to pinpoint individual Corps’ actions means that the court does not

have a concrete point in time to determine foreseeability.

The government asserts that if the Corps’ System and River changes have only

increased the “risk” of flooding, the plaintiffs cannot show foreseeability. Def.’s Br. at

78-9. The government argues that plaintiffs must show that the Corps should have

25
The government, as discussed infra, contends, for example, that the 2011 flood was not
foreseeable because it was caused by excessive snowmelt and rainfall in the upper basin above
Gavins Point Dam and that the 2011 flood was not a direct, natural, or probable result of keeping
water in the reservoirs during March and April 2011.
43
known that the System and River Changes would in fact cause additional flooding and

not merely the risk of additional flooding. Relying on Cary, the government argues that

taking a risk or an action that “increases the risk of a detrimental result ‘does not equate

to making the detrimental result direct, natural, or probable.’” Def.’s Br. at 78 (quoting

Cary, 552 F.3d at 1378). The critical question, the government contends, is what set the

chain of events in motion and then whether each event inevitably followed to cause the

result. Id. (citing Cary, 552 F.3d at 1379).

The government contends “[t]he Corps did not intend, nor did it expect, that any

increased flooding would likely occur as the result of either changes to the [Master]

Manual or the construction of habitat projects[.]” Id. at 6. The government describes

how multiple engineers discussed the Corps’ efforts to analyze possible changes from the

Master Manual revision and to model, design, and construct habitat projects to minimize

and avoid adverse effects on flood control.26 Id. at 5-6, 143-5. Relying on its experts and

Corps witnesses, the government contends that the “effects [of the Corps’ actions] on

water levels from project construction are minor and localized.” Id. at 146.

Having considered the parties’ arguments, the court concludes with regard to

plaintiffs’ burden to establish foreseeability as follows. First, plaintiffs must prove that

the flooding at issue was the “direct, natural, or probable result” of the Corps’ authorized

26
The government’s reliance on its efforts to minimize flooding is misplaced. As this court in
Bettini explained, “[t]he inquiry is not whether the result was intended nor whether it occurred
despite the efforts of the Government to prevent the damage, but whether it was the probable or
foreseeable consequence of a deliberate governmental act.” Bettini v. United States, 4 Cl. Ct.
755, 760 (1984) (citing Berenholz v. United States, 1 Cl. Ct. 620, 628 (1982)).
44
actions. Ridge Line, 346 F.3d at 1355 (internal quotations and citations omitted). The

Federal Circuit has explained that to prove a direct, natural, or probable result, a

“property owner must prove that the asserted government invasion of property interests

allegedly effecting a taking ‘was the predictable result of the government action,’. . .

because it was ‘the direct or necessary result’ of the act.” Vaizburd v. United States, 384

F.3d 1278, 1282-3 (Fed. Cir. 2004) (quoting Ridge Line, 346 F.3d at 1356) (other

citations omitted). This court in Baird v. United States explained that “it is the

‘likelihood of the outcome’ of the government’s action that distinguishes its takings from

its torts.” Baird v. United States, 5 Cl. Ct. 324, 330 (1984) (quoting Bettini v. United

States, 4 Cl. Ct. 755, 760 (1984)); Berenholz v. United States, 1 Cl. Ct. 620, 628 (1982)

(“The likelihood of the outcome serves to distinguish conduct which is taking from that

which is tortious.”), aff’d, 723 F.2d 68 (Fed. Cir. 1983)). In other words, “the probability

and foreseeability of the damage is a primary determinative element in whether a taking

or tort occurred.” Baird v. United States, 5 Cl. Ct. 324, 330 (1984).

In this regard, the court finds that Cary is plainly distinguishable from the present

case. Cary involved a forest fire started by a hunter where the government was sued for a

taking because it had left dead wood in the forest which made the forest fire worse than it

would have been without the dead timber. The government has focused on the portions

of Cary finding that there was only a long sequence of decisions, some of which

increased risk, and others which decreased risk, which was insufficient to demonstrate

that the loss of the plaintiffs’ property was the direct, natural, or probable result of the

Forest Service’s timber removal policies. The plaintiffs, on the other hand, rely upon

45
Cary’s recognition that a series of events can give rise to a taking. Cary, 552 F.3d at

1379. In Cary, the Federal Circuit discussed and distinguished flooding cases, including

Cotton Land, holding that “[t]he key difference between the flood cases and the instant

controversy is that the policy of suppressing fires did not set the [fire] in motion as the

dams did the floods.” Id. Thus, in flooding cases, foreseeability has been found where

the Corps removal and subsequent repair of a section of a dike protecting the plaintiffs’

property from Lake Erie caused the dike to weaken and erode, because “the washout of

the dike and flooding of the farm were the natural and probable consequences of

defendant’s conduct in creating the breach.” Berenholz, 1 Cl. Ct. at 627. The court in

Cotton Land held that a taking had occurred because “[t]he events which occurred,

although they took some time, were only the natural consequences of the collision of

sediment-bearing flowing water with still water, and the progress upstream, of the deposit

begun by that collision.” Cotton Land, 75 F. Supp. at 233. The court found that “a

succession of events was initiated which, when the events had all occurred in their natural

order, deprived the company of the beneficial use of its land.” Id.

Similarly, in Barnes v. United States, the Court of Claims determined that the

government’s control of the Missouri River through its construction and operation of the

Fort Randall and Gavins Point Dams on the Missouri River had the “natural

consequence” of producing a sediment delta on the Niobrara River, a tributary, resulting

in the intermittent and inevitably recurring flooding of the plaintiffs’ lands. Barnes v.

United States, 538 F.2d 865, 872 (Ct. Cl. 1976). The court found that “the delta’s

unprecedented size and tenacity were natural consequences of the closing of the dams in

46
the area, and that the flooding [of the plaintiffs’ properties] was a natural consequence of

delta growth.” Id. The court also held that “[t]he flooding has been occasioned by

authorized Government action for public use–construction and operation of the Fort

Randall and Gavins Point Dams.” Id. The court mentioned that “[t]he stipulation shows

that defendant anticipated the creation of a delta and a rise in the groundwater elevations

in the area.” Id. at 873.

The Federal Circuit in Ark. Game & Fish III affirmed the Court of Federal Claim’s

finding that the flooding was foreseeable because “the Corps of Engineers could have

foreseen that the series of deviations approved during the 1990s would lead to

substantially increased flooding of the Management Area and, ultimately, to the loss of

large numbers of trees there.” Ark. Game & Fish III, 736 F.3d at 1372-3. The Federal

Circuit additionally noted that the Court of Federal Claims also “found that during the

deviation period[,] the Commission put the Corps of Engineers on notice of the impact

the deviations were having.” Id. at 1373. Although Commission representatives had

complained that the long flooding periods caused by the Corps’ deviation policies were

damaging timber resources, the Corps had continued to approve said deviations during

the growing season of 2000. Id. In view of the foregoing precedents, the court finds that

the plaintiffs will be able to satisfy their burden if they can show that higher WSEs are a

direct and natural consequence of the cumulative and combined effects of the System and

River Changes taken by the Corps to meet its ESA obligations.

Second, the court also finds that foreseeability is judged on an objective basis. See

Moden, 404 F.3d at 1344 n.3. Thus, the Corps’ subjective foresight of injury is not

47
required. Cotton Land, 75 F. Supp. at 235 (“it is not necessary, in order to take

jurisdiction of a suit for compensation for property taken, to find that the Government’s

agents were aware that their acts would result in its taking, so that their performance of

the acts can be regarded as a somewhat tenuous promise to pay.”).

Finally, as will be discussed in the Liability Findings (Expert Testimony) section,

the issue of causation and foreseeability is different for the flooding in 2011 than the

other years. Plaintiffs are relying on a single purpose theory to prove that the Corps’

System and River Changes together, caused foreseeable flooding in each year. A

distinction must be drawn from the flooding in 2011, which was tied directly to System

releases aimed at protecting the integrity of the dams and reservoirs, and the flooding in

2007, 2008, 2010, 2013, and 2014. The Corps made System releases in 2007, 2008,

2010, 2013, and 2014 for T&E species which, plaintiffs argue, together with the River

Changes had the direct, natural, and probable effect of causing flooding or more severe

flooding in 2007, 2008, 2010, 2013, and 2014. The Corps’ System releases in 2011 were

not part of the single purpose of meeting the Corps’ obligations to protect T&E species.27

As such, the plaintiffs will need to separately prove causation and foreseeability for

flooding in 2011.

3. Severity

27
Plaintiffs argue that the 2011 flood was a consequence of the Corps changing its priorities and
deciding that flood control would no longer be considered the Corps’ first priority. The
plaintiffs, through their expert, Dr. Christensen, conceded that the System releases in 2011 were
not related to the Corps’ ESA obligations under the 2003 BiOp.
48
 To prove liability for a taking, plaintiffs must not only establish that the flooding

was caused by authorized government action and was the intended or natural, direct, and

probable consequence of the government’s actions, but also that “the injury constituted a

sufficiently severe invasion that interfered with the landowner’s reasonable expectations

as to the use of the land.” Ark. Game & Fish III, 736 F.3d at 1370 (citation omitted). In

this phase of the litigation the court did not require plaintiffs to establish the full extent of

the injury to their property interests. Issues regarding the full extent of the injury and of

valuing the interest taken have been reserved for the second phase of the litigation.

The plaintiffs argue that for the purpose of proving severity, they need only show

that the injuries to their properties have been more than de minimis and have “interfered

with the landowner’s reasonable expectations as to the use of the land.” Pls.’ Br. at 99

(citing Ark. Game & Fish III, 736 F.3d at 1370). The plaintiffs also argue that in

evaluating the severity of the flooding, this court should again consider “the collective

effects of all the MRRP flooding resulting from [the] single purpose[.]” Id. at 96 (citing

Ark. Game & Fish III, 736 F.3d at 1370).

The plaintiffs maintain that because flooding involves a physical occupation of

land, “[t]he damage can be substantial even if the flooding does not take the whole of the

property.” Id. at 97 (citing United States v. Cress, 243 U.S. 316, 328 (1917) (“[I]t is the

character of the invasion, not the amount of damage resulting from it, so long as the

damage is substantial, that determines the question whether it is a taking.”)). In this

connection, plaintiffs explain that only a few inches of surface flooding or an increase of

several inches in the groundwater table can cause drainage and/or seepage flooding that

49
interferes with planting for an entire year. Id. at 97-8. Plaintiffs assert that, for many

plaintiffs, where there have been repeated years of flooding, the Corps’ System and River

Changes “threaten[] to wipe out an entire way of life.” Id. at 98.

The government argues that plaintiffs can only establish a taking if the flooding

they prove “exceeded ‘a range that the property owner could have reasonably expected to

experience in the natural course of things,’ or the government action ‘impaired the use of

the lands for agricultural purposes.’” Def.’s Resp. at 45 (quoting Ark. Game & Fish III,

736 F.3d at 1374-5 (citation omitted)). The government insists, contrary to plaintiffs’

contentions, that “the question is not simply whether [p]laintiffs experience—for

example—longer, or more severe flooding now compared to before the agency action

that changes the character of the use of the land, but rather, how much—if any—of the

increase is caused by the agency action, and whether that amount, relative to the other

causes, results in a taking.” Def.’s Br. at 80 (citing Alost v. United States, 73 Fed. Cl.

480, 494 (Fed. Cl. 2006)). The government explains that “when natural flooding will last

a large number of days and at depths that would already cause damage—such as

destroying crops—the addition of an incremental length of days of flooding or depth due

to government action is unlikely to ‘materially enhance’ the damage caused by the flood

and result in a taking.” Id. at 81 (quoting Leeth v. United States, 22 Cl. Ct. 467, 487

(1991)). The government contends that in establishing the severity necessary to prove a

taking, courts consider the character of the land, such as the flood-prone nature of the

property, historical flooding events, and historical weather patterns, when assessing

causation and severity. In addition, the government argues based on Keystone

50
Bituminous Coal Ass’n v. DeBenedictis, that the court should also consider the “parcel as

a whole” because plaintiffs “have not alleged, nor can they show, that there has been a

permanent physical occupation of their property or a complete seizure of a portion of

their properties.” Def.’s Br. at 81 (citing 480 U.S. 470, 500 (1987)).

The court finds that at this stage of the litigation, for purposes of establishing

severity, it is sufficient for plaintiffs to show that government-induced flooding has

interfered with plaintiffs’ ability to use their land for its intended purposes. The court

heard uncontroverted testimony from each plaintiff as to how the flooding interfered with

their use of their property and the nature of the damages suffered. In Ark. Game & Fish

III, the Federal Circuit rejected the government’s argument that “the marginal increase in

flooding did not constitute a sufficiently severe invasion of the Commission’s property

rights to support a takings claim.” Ark. Game & Fish III, 736 F.3d at 1374. The court

further explained that “[t]he point is not that there was flooding before the deviations; the

point is that after the deviations began the flooding lasted for significantly longer periods

of time and had much more serious consequences than the flooding of the pre-deviation

period.” Id. The Federal Circuit explained that it is not “unreasonable to measure the

severity of the interference with a property owner’s rights by looking to the effects of the

interference[;] [the] interference with the Commission’s property rights [is considered to

be] as depriving the Commission ‘of the customary use of the Management Area as a

forest and wildlife preserve.’” Id. at 1375 (citing Ark. Game & Fish, 568 U.S. at 37-8).

The Federal Circuit mentioned that “[i]ndeed, it may often be difficult to say, in the

abstract, whether a particular intrusion is severe or only incremental in nature;

51
consideration of the effects of the intrusion on the property owner will often make that

distinction easier to draw.” Id.

In this connection, the court finds that the government’s reliance on Keystone

Bituminous Coal and its related arguments regarding the “parcel as a whole test” are

misplaced and unpersuasive. Keystone Bituminous Coal is a regulatory takings case and

thus is not applicable here. See Tahoe-Sierra Pres. Council, Inc., 535 U.S. at 326-7. Nor

is the “parcel as a whole” test applicable or appropriate for determining the severity of

government-induced flooding in a physical takings case. See id. In Tahoe-Sierra, the

Supreme Court made clear that “[w]hen the government physically takes possession of an

interest in property for some public purpose, it has a categorical duty to compensate the

former owner, regardless of whether the interest that is taken constitutes an entire parcel

or merely a part thereof.” Id. at 322 (citing United States v. Pewee Coal Co., 341 U.S.

114, 115 (1951)).

At this stage of the litigation, plaintiffs who are able to prove an invasion by

government flooding that interfered with that plaintiff’s use and enjoyment of the

property for some period of time (which can be established by combining the impacts of

flood events over multiple years) will be allowed to proceed to the next phase of the

litigation.

III. Liability Findings (Expert Testimony)

The plaintiffs retained three experts to support their takings claims based on

flooding in 2007, 2008, 2010, 2011, 2013, and 2014. In keeping with their theory that

that the flooding was caused by the cumulative and combined effects of the Corps’

52
System and River Changes,28 the plaintiffs focused their experts’ testimony on how the

Corps’ System and River Changes together caused higher water surface elevations

(“WSEs”) in the River, which led to atypical flooding, namely flooding that would not

have occurred or was more severe.29 The plaintiffs retained Dr. Ronald Kurt Christensen,

Ph.D., P.E., J.D., Dr. Ted Hromadka II, Ph.D., Ph.D., Ph.D., D.WRE, P.E., P.G., P.H.,

and Mr. Glenn Tofani, P.E., G.E.

Dr. Christensen’s opinion testimony focused on a “but for” analysis to show

WSEs in a world without the Corps’ System and River Changes, as compared to WSEs in

the “actual” world with the Corps’ System and River Changes for each year of flooding.

Dr. Christensen opined that the difference in WSEs between the “but for” and “actual”

world was explained by the Corps’ System and River Changes, and that together the

Corps’ System and River Changes caused flooding that would not have occurred or

would not have been as severe.

Dr. Hromadka’s opinion testimony focused on the hydrological reasons for how

and why the Corps’ River Changes caused a rise in WSEs, and thus why the Corps’ River

Changes, together with the System Changes, caused plaintiffs to experience more

flooding or more severe flooding than before the System and River Changes were

undertaken by the Corps. He also opined as to why the flooding caused by the Corps’

28
Throughout the trial, the plaintiffs argued that the Corps’ System and River Changes were
made to meet the Corps’ ESA obligations. They also argued that by virtue of the Corps’ ESA
obligations, flood control was no longer the Corps’ first priority and that this shift in priorities
also led to increased flooding. See, e.g., Tr. 4517:23-4525:11 (Christensen).
29
The plaintiffs relied on the testimony of each individual plaintiff to establish the severity of
flooding for the years in question.
53
System and River Changes was foreseeable as a natural, direct, and probable

consequence of the System and River Changes. Finally, he testified regarding the

flooding claimed by each plaintiff and offered his opinion as to whether the Corps’

System and River Changes were a foreseeable cause of the flooding on each plaintiff’s

property. In this connection, Dr. Hromadka explained that there were different reasons

for flooding on various plaintiffs’ properties. For the properties adjacent to the River,

there was overbank flooding, blocked drainage, and seepage. For properties further away

from the River, including properties behind levee systems, there was flooding associated

with levee overtopping and with blocked drainage and seepage. Dr. Hromadka did not

testify as a levee expert, but was qualified to testify regarding blocked drainage and

seepage, which are effects from higher WSEs. In formulating his opinions regarding

flooding from levee failures, Dr. Hromadka relied on the testimony of Mr. Tofani, an

expert in levee construction who was retained by plaintiffs to opine on the effect of

higher WSEs on levees in the vicinity of plaintiffs’ properties, including the effects of

levee overtopping, blocked drainage, and seepage.

Mr. Tofani offered his analyses and opinions regarding the effect of WSEs on

levees and on the failure of various levees during the years in question. There are many

levees protecting properties from flooding along the lower River. As discussed infra,

many of the levees at issue are private levees or levees that are part of the federal

government’s Public Law 84-99 (“PL 84-99”) program that failed and caused flooding in

some of the years at issue. In addition, several properties were flooded when a few

federally owned and operated levees failed in 2011. Mr. Tofani opined as to each

54
plaintiff claiming flooding based on levee overtopping and/or levee failure. He relied, as

did Dr. Hromadka, on the WSE analysis of Dr. Christensen and testified as to how those

higher WSEs translated to higher water levels on affected levees, which caused them to

overtop with some then failing. Mr. Tofani offered his opinions as to whether any of the

levees would have overtopped or failed in the “but for” world modeled by Dr.

Christensen. Mr. Tofani also prepared a separate analysis in connection with one of the

federal levees that failed in 2011 because it was adjacent to a re-opened chute. Finally,

Mr. Tofani offered his opinions regarding the effects of blocked drainage and seepage

that he determined were caused by the Corps’ System and River Changes.

The government, in response to the plaintiffs’ experts, presented the testimony of

experts of its own, as well as the testimony of many professional government employees

from several agencies, including the Corps, who challenged the analyses and opinions of

the plaintiffs’ experts with their own opinions. The government retained Dr. Robert

Mussetter, Ph.D., P.E., Mr. Mark Woodbury, M.S., Dr. Jeffrey Schaefer, Ph.D., P.E.,

P.G., and Dr. Andrew Kopania, D.Env., P.G.

The government presented Dr. Mussetter, who offered his analyses and opinions

to show, based on modeling he had conducted, that the Corps’ changes to the River he

modeled did not cause flooding, but in fact had a positive effect on lowering WSEs in

many situations by allowing more water to spread across the floodplain.

The government also relied on Mr. Woodbury, a civil engineer, who, based on his

modeling and Dr. Mussetter’s calculations, opined that the changes to the System and

River that he modeled, which were not the same as those modeled by plaintiffs’ experts,

55
did not have a significant impact on WSEs in the River and thus did not cause flooding or

make flooding significantly more severe in the years in question. Importantly, the

LIDAR imagery30 presented by Mr. Woodbury, as part of his analysis, confirmed that

virtually all of the flooding complained of by plaintiffs in fact occurred and was almost

always attributable, at least in part, to elevated WSEs in the Missouri River. Based on his

modeling, Mr. Woodbury presented his opinion as to each plaintiff’s flooding claim and

opined as to whether, based on the changes he modeled, the Corps’ actions caused more

or fewer days of flooding than would have occurred without the changes he modeled.

The government also presented the expert testimony of two witnesses to respond

to Mr. Tofani’s opinions regarding levee failure, blocked drainage, and seepage. Dr.

Schaefer was called as the government’s levee expert. He focused his testimony on the

2011 levee failures. Dr. Schaefer opined that the 2011 levee failures were caused by the

extraordinary high flows in the River and that Mr. Tofani’s contention that a re-opened

chute contributed to one of the federal levee failures was not supported. Dr. Schaefer

also examined whether the Corps’ changes, as modeled by Mr. Woodbury, caused

increased seepage and concluded they did not. Relying upon the same modeling, Dr.

Schaefer concluded that none of the Corps’ actions could have led to any erosion on

plaintiffs’ properties either. The government also offered the testimony of Dr. Kopania,

who relying on Mr. Woodbury’s modeling, offered his opinion that he did not find

30
LIDAR is a remote-sensing surveying method produced by the government that creates three-
dimensional pictures of particular points on the Earth’s surface on specific dates.

56
evidence to show that groundwater levels rose due to increases in WSEs, and thus the

Corps was not responsible for causing additional seepage.

The government further relied on the testimony of several professional Corps

employees who work on the Missouri River, who offered their opinions as to whether the

increased WSEs measured on the River could be instead explained by the plaintiffs’

actions. Specifically, these Corps employees testified that by building private levees, the

plaintiffs had constricted river flows and caused higher WSEs. These government

witnesses did not, however, present any analysis or data to support their assertions. The

government also presented the testimony of other government witnesses, most

particularly Jody Farhart, who was responsible for System operations during the relevant

time period and who explained that the Corps did not ignore flood control when it made

releases, most especially in 2011.

Finally, the government presented witnesses from other government agencies,

including FWS, Federal Emergency Management Agency (“FEMA”), and National

Oceanic and Atmospheric Administration (“NOAA”), who testified to various facts

associated with the Corps’ ESA compliance history, weather patterns during the flood

years in question, and where plaintiffs’ properties were located on FEMA maps within

the Missouri River floodplain.

In the sections that follow, the court will review the plaintiffs’ experts’ testimony,

the government’s experts’ testimony, and the government’s witness testimony in detail,

with the understanding, as discussed in the Legal Standards section, that the court agrees

with the plaintiffs that where, as here, the Corps made systemic changes to its

57
management of the System and to the River in order to meet its ESA obligations, it is not

necessary for the plaintiffs to pinpoint the precise Corps actions at each property to

establish “but for” causation and foreseeability. The plaintiffs’ “but for” causation

burden rises and falls on their ability to show for each year of flooding that the

cumulative and combined effects of the Corps’ System and River Changes resulted in

foreseeable flooding that was either greater than what would have occurred without these

Changes or would have been prevented altogether. In this connection, as also discussed

above, the plaintiffs can only meet their foreseeability burden by establishing that the

flooding was either the intended result of the Corps’ actions or the direct, natural, and

probable consequence of the Corps’ actions.

1. Causation and Foreseeability

a. Dr. Christensen

Dr. Ronald Kurt Christensen, Ph.D., P.E., J.D., is a professional engineer with 36

years of experience in civil, reservoir, and river environmental engineering. Tr. 4461:22-

4462:1; PX2050. He holds a B.S. in Watershed Science from Utah State University,

College of Natural Resources (1978). Tr. 4464:5-18; PX2050. He received his M.S. in

Civil Engineering in 1980 from Utah State University, where he studied Water

Hydrology and River and Reservoir Management. Tr. 4463:20-4464:3; PX2050. He

received a Ph.D. in Civil and Environmental Engineering from Utah State University in

1996. Tr. 4463:7-19; PX2050. He also holds a J.D. from the University of Utah College

of Law (1999). Tr. 4462:4-6; PX2050. He is a licensed Professional Engineer in

Alabama, New Mexico, and Utah and is a member of the American Society of Civil

58
Engineers. Tr. 4464:19-24; PX2050. Dr. Christensen was an adjunct professor of Civil

and Environmental Engineering from 1998 to 2002 at Utah State University. Tr.

4465:11-14; PX2050. In 2007, he was an adjunct Hydrology instructor at Utah Valley

State College. Tr. 4465:9-11; PX2050.

Dr. Christensen has had extensive experience studying the hydrology and

operations of rivers, dams, and reservoirs. Tr. 4465:15-22; PX2050. As the owner of

Water and Environmental Services, LLC, a consulting firm, he has worked specifically

on issues of reservoir and river operations, including work studying the Flathead Lake

and Reservoir in Montana between 2015 and 2016, where he did an analysis of flooding,

hydropower, and erosion. Tr. 4464:22-4467:4, 4472:12-16; PX2050. He also studied

flood operations and hydrology for the R.L. Harris Dam on the Tallapoosa River in

Alabama. Tr. 4468:15-23; PX2050. In conducting his work, Dr. Christensen explained

that he has applied various modeling techniques, including the Corps’ HEC-RAS

computer model on several occasions.31 Tr. 4470:4-4472:20, 4482:12-4485:20; PX2050.

He explained the circumstances in which he determined that the Corps’ HEC-RAS model

is helpful and, as discussed infra, why he did not use the HEC-RAS model in his work

31
HEC-RAS is a modeling system that is used by the Corps and others to determine the effects
of individual changes to a river, such as the construction of a bridge across a river which will
likely lead to constricting the river. See, e.g., Tr. 4470:4-4471:2 (Christensen). Dr. Christensen
testified that most recently he had used HEC-RAS to analyze the levee breach on the Missouri
River at the Iatan Power Plant in Missouri. Tr. 4471:15-4472:4. He has also used the computer
program for single-event analysis and floodplain mapping. Tr. 4471:1-2. Dr. Christensen
explained that it is not used to model an entire complex river. Tr. 5026:7-11. See also Tr.
11605:12-15, 11611:13-16 (Woodbury; admitting that one-dimensional models such as HEC-
RAS cannot effectively capture “three-dimensional effects” or “the hydrodynamic complexities”
of a flooding river.); PX2229 at 3 (“there is concern over the ability of 1D [hydraulic] models
[such as HEC-RAS] to effectively capture the hydrodynamic complexities of a river in flood[.]”).
59
for this case. Tr. 4702:10-4712:18. The court finds Dr. Christensen to be a highly

reliable and credible witness with both impressive credentials and extensive relevant

experience on the issues of causation and foreseeability in connection with reservoir

operations and river hydrology.

Dr. Christensen testified that he was engaged by plaintiffs to evaluate, analyze,

and assess the changes the Corps has made to its policies and procedures regarding the

operation and management of the mainstem reservoir System (“System Changes”).32 Tr.

4487:5-25. In this context he explained the new Master Manual “made changes to

navigation releases for conservation” and “made changes to releases for T&E species

protection.” Tr. 4537:10-27, 4539:3-4. He further explained “[t]he BiOp requires two

distinct types of releases to benefit T&E species. First, variable flows to benefit the pallid

sturgeon . . . [a]nd second, releases designed to aid the nesting of and avoid the taking of

least terns and piping plovers.” Tr. 4539:5-7, 21-23. He testified that he was also

engaged by plaintiffs to evaluate, analyze, and assess the changes the Corps has made and

is continuing to make to the Missouri River channel (“River Changes”).33 Tr. 4487:5-25.

32
Dr. Christensen identified six significant System Changes: (1) the Corps “deprioritized flood
control” by balancing all System authorized purposes equally (Tr. 4517:23-4524:11); (2) the
Corps reduced the amount of System flood control storage (Tr. 4525:4-4529:7); (3) the Corps
modified its navigation releases for conservation, resulting in less reservoir storage capacity (Tr.
4529:25-4530:4, 4535:15-4539:2); (4) the Corps replaced Plate 44 in the 1979 Master Manual
with Plate VI-1 in the new Master Manual, which meant that release minimums were replaced by
advisory guidance (Tr. 4529:20-24, 4530:5-4535:7); (5) the Corps increased the frequency of
T&E releases (Tr. 4539:3-4547:16); and (6) the Corps adopted an “adaptive management”
approach to meet its ESA obligations, which gave it more operational flexibility to protect T&E
species (Tr. 4513:13-16, 4514:17-24, 4524:15-4525:3).
33
Dr. Christensen identified four significant River Changes: (1) the Corps modified, removed,
and failed to maintain dikes and revetments (Tr. 4662:16-23, 4667:13-23); (2) the Corps created
chevrons, chutes, and backwater areas (Tr. 4662:16-23, 4667:13-23, 4674:6-4675:3); (3) the
60
He explained that the “2003 amended BiOp . . . ordered that and directed that the Corps

needed to restore the connectivity of the floodplain to the river.” Tr. 4661:7-10.

Specifically, he testified that the 2003 amended BiOp “ordered that shallow-water habitat

be constructed or be created some way or another for [the] endangered pallid sturgeon.”

Tr. 4661:20-22. Additionally, he explained that “[i]n 2004 as required by the ROD, the

Corps deprioritized flood control and accelerated . . . its modification of river control

structures[,] . . . the reintroduction of chutes and, . . . the construction of various habitat

projects[.]” Tr. 4662:18-23. He testified that he was asked by plaintiffs to offer opinions

based on his assessments and analyses as to whether and to what extent the Corps’

System and River Changes have contributed to the increased incidents of flooding and to

the severity, frequency, and duration of flooding on the Missouri River since those

System and River Changes have been implemented by the Corps. Tr. 4487:15-18.

Although, as discussed below, Dr. Christensen analyzed each of the flood years

separately, Dr. Christensen offered the following generalized opinions. First, he opined

that “[t]he Corps’ changes to its operation and management of the [S]ystem post-2004

contributed to cause higher water surface elevations downstream of the [S]ystem and

flooding of greater frequency, severity and/or duration than would have otherwise

occurred.” Tr. 4488:6-11. Second, he opined that “[t]he Corps’ changes to its operation

and management of the [R]iver channel had the cumulative effect of reducing the flood

Corps constructed SWH and ESH projects for T&E species (Tr. 4662:16-23, 4663:23-4665:14,
4676:12-4677:15); and (4) the Corps added sediment to the River (Tr. 4673:22-4674:5, 4680:11-
16, 4691:18-19).
61
carrying capacity of the [R]iver, allowing the lateral migration of water to the floodplain

during high-water events, sloughing and eroding the riverbanks, and contributing to cause

high water surface elevations and flooding . . . of greater frequency, severity, and/or

duration than would have otherwise occurred.” Tr. 4488:12-21. Third, Dr. Christensen

opined that “[b]ut for the Corps’ changes to its policies and procedures for the operation

and management of the [S]ystem and . . . the [R]iver, the flooding of [p]laintiffs’

properties either would not have occurred or would have been of lesser frequency,

severity and duration.” Tr. 4488:22-4489:2. Finally, he opined that “[u]nless the Corps

reverts to its prior policies and procedures for the operation and management of the

[S]ystem and the [R]iver, the increased levels of flooding will continue.” Tr. 4489:3-6.

Dr. Christensen distinguished the flooding in 2011 from the other years of

flooding at issue in the case. Specifically, he acknowledged that not all of the flooding

experienced by all plaintiffs “could have or would have been avoided[]” in 2011. Tr.

4489:18-4490:1. In contrast to the other years of flooding, Dr. Christensen also opined

that the System releases in 2011 were made solely because of inadequate System storage

in the reservoirs due to high mountain snowpack and heavy plain snowpack. Tr.

4590:11-23, 4591:21-4592:3. He explained that the “[s]ummary of results are that the

lack of system storage forced the Corps to make releases of unprecedented duration and

volume throughout the summer of 2011, contributing to and exacerbating catastrophic

flooding throughout the basin.” 4591:24-4592:3. According to Dr. Christensen, the

extensive flooding in 2011 was caused by the Corps’ failure to release water from the

62
reservoirs early enough in the year and in sufficient quantities to minimize flooding. Tr.

4591:24-4594:8.

In contrast to the System releases in 2011, Dr. Christensen explained that the

System releases in 2007, 2008, 2010, 2013, and 2014 were made to meet the Corps’

obligations under the ESA. Tr. 4539:3-4540:2, 4546:6-4547:16. Dr. Christensen

testified that releases from the System for years other than 2011 were sometimes needed

to prevent protected bird species from nesting in low-lying areas.34 Tr. 4539:21-4541:14.

Other times, releases were needed to cue the pallid sturgeon to spawn. Tr. 4539:8-20.

Dr. Christensen acknowledged that some flooding would still have occurred at points

downstream of Gavins Point during 2010, but unlike in 2011, he testified that the Corps

in 2010 made T&E releases that made flooding more severe in extent and duration. Tr.

4581:22-4582:18; PX2094-A at 1-3.

The court finds that the releases and the reasons for the releases in 2011 and in

2007, 2008, 2010, 2013, and 2014 are sufficiently different from each other that the 2011

flood needs to be analyzed separately for both causation and foreseeability. Thus, the

court will first review Dr. Christensen’s analysis and opinions regarding the System

Changes for the 2007, 2008, 2010, 2013, and 2014 flooding, and then the court will turn

to Dr. Christensen’s analysis and opinions regarding the System Changes in 2011. The

court will thereafter examine Dr. Christensen’s opinions regarding causation and

34
Under the terms of the 2003 BiOp, the Corps now operates under an incidental take statement
which allows the Corps to kill a limited number of birds or eggs without triggering the liability
provisions of the ESA.
63
foreseeability with respect to the River Changes and his analysis of the cumulative and

combined effects of the Corps’ System and River Changes.

i) System-Related Flooding in 2007, 2008, 2010, 2013, and
2014

Dr. Christensen began his opinion testimony by briefly reviewing the history of

the Missouri River and how it has changed over time. Dr. Christensen explained that

historically the River was “a braided, multi-channel river . . . [which] flooded

regularly[.]” Tr. 4491:14-16. He explained that the River’s original connection to its

floodplain had allowed native species to flourish. Tr. 4491:16-19. He then explained, as

discussed above, that in the 1940s in order to encourage economic development in the

Missouri River Basin, “the Government began, through the Corps, to actively regulate

and manage all aspects of the [R]iver to provide, amongst other things, flood control and

downstream navigation.” Tr. 4491:23-4492:4. He testified that under the 1944 Flood

Control Act (“FCA”), the six large dams and reservoirs, Fort Peck, Garrison, Oahe, Big

Bend, Fort Randall, and Gavins Point, were built by the Corps to provide flood control.

Tr. 4494:13-19. He explained that each reservoir in the System has five storage zones:

(1) the inactive zone, which is the lowest zone where water is stored continuously; (2) the

carryover storage zone, where water can be stored over multiple years and which is

emptied and filled for System water uses, including, in order of priority under the 1944

FCA vc(flood control; navigation; hydropower; irrigation, municipal and industrial water

supply, and water quality; recreation; and fish and wildlife habitat); (3) the flood control

and multiple use zone, which needs to be emptied by March each year, so there is enough

64
room in the System to capture the snowmelt and hold it to protect against downstream

flooding; (4) the exclusive flood-control zone, which is for flood control only and is kept

empty except for when there are large floods; and (5) the surcharge zone, which is the

uppermost zone and is empty to accommodate large floods that exceed the exclusive

flood control zone. Tr. 4495:24-4499:20.

Dr. Christensen testified that flood control is allocated among the reservoirs. Tr.

4499:22-4500:14. See also PX2200. He explained that the upper Basin runoff captured

by the System includes: (1) plains snowmelt, which usually occurs during March and

April; (2) mountain snowmelt, which usually begins in late April and can go through

July; and (3) rainfall, which is random but occurs during these melting periods. Tr.

4501:3-4502:17.

Dr. Christensen described his understanding of the Corps’ System operations

under the 1979 Master Manual and later contrasted that understanding with his

understanding of the changes made by the Corps to the Master Manual after 2004, which

included changes to meet the Corps’ obligations under the ESA to comply with the 2003

BiOp. Tr. 4502:23-4547:16. Under the 1979 Master Manual, Dr. Christensen testified,

flood control was the highest priority and fish and wildlife protection had the lowest

priority. Tr. 4503:12-23. See also PX3 at USACE0004040-1. Dr. Christensen explained

that under the 1979 Master Manual, releases from Gavins Point Dam were significantly

reduced during periods of high downstream inflows from the tributaries into the Missouri

River. Tr. 4503:24-4505:7.

65
 Dr. Christensen testified that in order to implement the BiOp, the Corps changed

the Master Manual in 2004 and further revised it in 2006, hereafter the “new Master

Manual.”35 Tr. 4513:4-12. According to Dr. Christensen, under the new Master Manual,

flood control is no longer the Corps’ first priority except when risks to health and safety

are imminent. Tr. 4517:23-4524:11. See also PX4 at USACE0002644; PX5 at

USACE0121577-8, USACE0121590; PX2201. Whereas the 1979 Master Manual clearly

identified flood control as the first priority, the new Master Manual states that “Congress

did not assign a priority” to any of the 1944 FCA-authorized purposes and “it was

contemplated that the Corps . . . would balance these functions in order to obtain the

optimum development and utilization of the water resources of the Missouri River

[B]asin to best serve the needs of the people.” PX5 at USACE0121590. The new Master

Manual further states that the Corps would now abide by four objectives: “first, to serve

the contemporary needs of the [B]asin and the Nation; second, to serve the

Congressionally authorized project purposes; third to comply with other applicable

statutory and regulatory requirements including environmental laws such as the

Endangered Species Act (ESA); and fourth, to fulfill the Corps’ responsibilities to

Federally recognized Tribes.” Id. See also PX2201.

35
Dr. Christensen explained that in addition to operating reservoirs and dams, the Corps’ pre-
2004 actions over the years had served to disconnect the Missouri River from its floodplain by
channelizing the previously shallow and braided river. Tr. 4492:5-14. In so doing, he testified,
“[t]housands of acres of habitat of native fish and wildlife were destroyed, including the habitat
of what are now considered threatened and endangered species . . . under the ESA[.]” Tr.
4492:15-19. As discussed previously, concerns over these environmental consequences led to
litigation forcing the Corps to make changes to its policies and practices to better protect and
promote T&E species. Ultimately, this litigation resulted in a court order requiring the Corps to
implement the 2003 BiOp of the FWS.
66
 Dr. Christensen explained that to comply with the 2003 BiOp, the Corps began to

make very specific releases downstream to benefit T&E species (“T&E releases”).36 Tr.

4539:3-4540:2. First, to benefit the interior least tern and piping plover, he testified that

the Corps began making releases using cycled or heavy steady spring flows to prevent the

least terns and plovers from building low-lying nests for fear these nests would wash

away, and then the Corps would lower the releases downstream to prevent flooding once

the nests were made. Tr. 4539:21-4541:4. Second, to benefit the pallid sturgeon, Dr.

Christensen explained that the Corps began making additional releases downstream. Tr.

4539:8-20. These releases involved increasing flows in the spring in order to provide

spawning cues to the sturgeon. Id. The court understands that the Corps also lowered

releases in the summer in order to protect the SWH the Corps had created for the

sturgeon.37

Dr. Christensen opined that the T&E releases needed to meet the Corps’ ESA

obligations compromised flood control because cycled releases were made by the Corps

at the same time that the lower River was facing large tributary inflows or rain. Tr.

4541:8-14. According to Dr. Christensen, the Corps’ releases made to comply with the

ESA added to downstream flooding in 2007, 2008, 2010, 2013, and 2014.38 Tr. 4546:22-

36
Dr. Christensen acknowledged that the Corps had periodically made releases for species
protection starting in 1986, but explained that under the new Master Manual, these T&E releases
are now mandatory to comply with the ESA. Tr. 4541:5-14.
37
Dr. Christensen explained that reductions in releases for T&E protection can interfere with
flood protection whenever higher releases are needed to empty the reservoirs to provide space for
upper Basin runoff the next year. Tr. 4541:8-14, 4546:6-21.
38
The benefits to the least terns and plovers, as well as to the pallid sturgeon, from flooding were
acknowledged by both Corps and FWS witnesses at trial. Mr. Casey Kruse, the Missouri River
coordinator for the FWS, testified that big floods benefit the bird species by improving habitat.
67
4547:16. He reached that conclusion based upon a model he created to compare River

water levels in a “but for” world where the Corps did not have to make releases for ESA

compliance with those in the “actual world” with the T&E releases needed for ESA

compliance. Tr. 4547:24-4549:11.

Dr. Christensen characterized his model as “simple, because it [was] based on

measured data, actual Corps past practices, and the applicable criteria, rather than

elaborate computer simulation.” Tr. 4549:12-15. Dr. Christensen treated the six

reservoirs of the System as a single reservoir for modeling purposes, and thus he only

modeled releases from Gavins Point, the last reservoir in the System. Tr. 4552:22-

4553:2. He claimed that he accounted for differences in available storage in individual

reservoirs in his calculations of a single release from Gavins Point Dam, stating that at

“the end of the month [S]ystem storage [for all reservoirs was] equal to the previous

month storage, plus net inflow minus net outflow[.]” Tr. 4553:3-6. Regarding

assumptions, Dr. Christensen explained that in his “but for” world, flood control

remained the number one priority and that the Corps would have continued to make

releases that benefited flood control. Tr. 4551:7-20. He further explained that he

modeled the years 1993 through 1999, as well as the period from 2000 to 2015, in order

to capture two high flow years before the Corps implemented the new Master Manual.

Tr. 4553:8-15. He used 1993 through 1999 to model actual System releases and the

Tr. 1155:7-12. Mr. Bitner, from the Corps, testified that overbank flooding also helped the pallid
sturgeon by washing biota and nutrients into the River. Tr. 1740:14-23.
68
period from 2000 to 2015 to model old policy operations under the 1979 Master Manual.

Id. He then explained his modeling results for each year of flooding.

For 2007, Dr. Christensen testified that “the Corps’ actual releases in 2007 were

higher than they would have been under the [1979 Master Manual] and policies. The

primary reason for the difference was the changes the Corps made to its release schedule

for T&E low nesting prevention and conservation.” Tr. 4557:13-23. Specifically, he

explained that the Corps in 2007 made higher T&E releases in the spring despite high

downstream inflows and that because these higher releases coincided with the highest

downstream flows, there was increased flooding. Tr. 4556:22-4558:1. Under Dr.

Christensen’s “but for” model, the Corps would have limited its releases to 6,000 cubic

feet per second (“cfs”) during critical periods, instead of making T&E releases. Tr.

4559:5-9, 4567:5-9; PX2060-A at 2; PX2091-A at 1-2. Dr. Christensen acknowledged

that the additional releases for T&E species in the actual world in 2007, as compared to

overall flows downstream, were not necessarily large. Tr. 4558:12-4559:23. He opined,

however, that because they added flow, these T&E releases contributed to higher WSEs,

thus causing greater flooding in 2007 than would have occurred without these T&E

releases. Tr. 4557:16-4567:25. For example, he explained that on May 2nd, the Corps

began higher T&E releases, which, due to travel time, coincided with the May 7th and

8th critical high flows. Tr. 4573:9-13. Evidence presented by the government showed

that, during periods of peak flow, releases from Gavins Point made up approximately five

to ten percent of downstream flows in 2007. DX3015-207; DX3015-220; DX3015-221;

DX3015-300; DX3015-301; DX3015-394; DX3015-395; DX3015-552; DX3015-553.

69
 Dr. Christensen presented his model results for 2008 and offered the same opinion

as he had for 2007, to the effect that releases in 2008 were higher to prevent low T&E

bird nesting, despite higher downstream inflows, and that because they coincided with

periods of higher downstream flows, these T&E releases caused more severe flooding

than would have occurred without these releases. Tr. 4573:23-4575:9. Dr. Christensen

explained that in the “but for” world, the Corps would have reduced releases in 2008

when the Corps had some reason to anticipate higher tributary flows. Tr. 4574:3-8,

4576:3-7; PX2060-A at 3; PX2091-A at 3-4. According to Dr. Christensen, the

differences between his models under the “but for” world and the actual world for May

and June were greater for 2008 than for 2007. Tr. 4576:21-24. Evidence presented by

the government showed that during periods of peak flow, releases from Gavins Point

made up approximately five to fifteen percent of the downstream flow in 2008. DX3015-

207; DX3015-220; DX3015-222; DX3015-300; DX3015-302; DX3015-394; DX3015-

397; DX3015-552; DX3015-554.

Dr. Christensen explained that System storage was a factor in the flooding that

occurred in 2010 because “reduced storage capacity . . . led to higher releases” from the

System. Tr. 4578:13-19. According to Dr. Christenson, “[c]arryover storage [in 2010]

was more full than it would have been pre-2004 due to the Corps’ new policies and

practices of reduced releases for conservation and reduced capacity due to

sedimentation.” Tr. 4578:23-4579:2. Specifically, Dr. Christensen testified that, due to

high plains snowpack melt and precipitation, the three largest downstream reservoirs

were filled into the exclusive flood control zone early: Oahe by the end of May; Fort

70
Randall by the end of June; and Garrison by the end of July. Tr. 4579: 3-6, 4580:5-13.

During June, July, and most of August, considerable downstream flooding occurred,

which, Dr. Christensen opined, was exacerbated by the high releases from the System,

including T&E releases that “coincided with the highest downstream peak flows[.]” Tr.

4582:4-25. Dr. Christensen conceded that this was one of the years of flooding in which

all flooding could not have been avoided in the “but for” world. PX2094-A at 1-3. Dr.

Christensen explained that under the 1979 Master Manual, the Corps would have had

more capacity in the reservoirs because it would not have retained as much water in the

reservoirs from the prior drought year, and when there was downstream flooding, the

Corps would not have conducted T&E releases. Tr. 4578:24-4579:2, 4583:2-5. Dr.

Christensen testified that in the “but for” world, the Corps would have kept releases

lower during June and July when the highest downstream flows occurred, and the lower

releases would therefore have reduced the flooding in 2010. Tr. 4588:21-4589:5;

PX2060-A at 4; PX2094-A at 1-3. Evidence presented by the government showed that

during periods of peak flows in 2010, releases from Gavins Point made up fifteen to

twenty percent of the flow. DX3015-207; DX3015-220; DX3015-223; DX3015-300;

DX3015-303; DX3015-394; DX3015-398; DX3015-552; DX3015-555.

Dr. Christensen testified that T&E releases in 2013 caused increased flooding. Tr.

4647:10-17. He explained that despite higher downstream inflows during late May and

early June, the Corps maintained higher T&E releases, which “coincided with the highest

downstream flows and increased the flooding.” Tr. 4647:4-17. Dr. Christensen testified

that in the “but for” world, the Corps would have reduced releases when there were high

71
downstream flows. Tr. 4647:6-12, 4648:18-23; PX2091-A at 5-6. Evidence from the

government showed that during periods of peak flows, releases from Gavins Point made

up twenty to thirty percent of the flow in 2013. DX3015-207; DX3015-220; DX3015-

227; DX3015-300; DX3015-308; DX3015-394; DX3015-406; DX3015-552; DX3015-

561.

Dr. Christensen testified that T&E releases increased flooding in 2014. Tr.

4650:4-4651:1. He testified that while the Corps reduced releases in June 2014 to

accommodate downstream flooding, the Corps maintained higher flows for T&E species

purposes, which “coincided with the highest downstream flows and increased the

flooding.” Tr. 4650:4-19. He explained that the Corps’ actions thus “caused higher and

longer duration flood flows.” Tr. 4650:4-7. Dr. Christensen testified that in the “but for”

world, the Corps would not have made T&E releases and would have reduced its

releases, reducing the flooding in 2014. Tr. 4650:4-12; PX2091-A at 7-8. Evidence from

the government showed that during periods of peak flows, releases from Gavins Point

made up ten to twenty percent of the flow in 2014. DX3015-207; DX3015-220;

DX3015-229; DX3015-300; DX3015-310; DX3015-394; DX3015-408; DX3015-552;

DX3015-563.

The government took issue with Dr. Christensen’s System model and his opinions

regarding the Corps’ System Changes for the years in question. The court has considered

those criticisms and has determined that the government’s criticisms do not undermine

the basic logic and factual support behind Dr. Christensen’s opinions. Set forth below are

some of the most repeated criticisms for each flood year and the reasons the court finds

72
that these criticisms do not undercut Dr. Christensen’s conclusions. First, the

government criticized Dr. Christensen by suggesting that his model required omniscience

because it assumed extremely low releases to avoid the highest downstream flows, which

the government contends could not be known.39 See Tr. 4572:20-4573:22, 4577:15-

4578:11, 4589:6-4590:10, 4648:24-4649:21, 4651:2-22 (Christensen). The court

disagrees. The 1979 Master Manual did not require releases for the benefit of fish and

wildlife and, based on the priorities articulated in that Master Manual, no releases for fish

and wildlife would have been undertaken unless the Corps was assured that there would

be no flooding in the lower Basin. PX3 at USACE0004040-1. See also Tr. 4503:12-23,

4530:19-22, 4586:12-21 (Christensen), 6611:2-23 (Ponganis). For example, in 2007, just

before it increased T&E releases, the Corps had reduced its releases for a brief period

because of flooding concerns but then raised T&E releases right at the time of greater

downstream inflows. Tr. 4573:1-22. See also DX3001-243. In the “but for” world, Dr.

Christensen correctly assumes that if flooding was already occurring in the lower River,

the Corps would not have resumed releases. The same was true for T&E releases in

2008. See, e.g., Tr. 4577:19-4578:11; DX3001-247. Similarly, in 2010, the Corps

continued T&E releases after flooding downstream was brought to the Corps’ attention.

Tr. 4581:22-4584:8. See also DX3001-263. After receiving notice that 14 or 18

Missouri River gages were above the flood stage downstream of Gavins Point, the Corps

continued to make T&E releases in 2010 because, as Ms. Farhart explained at the time in

39
The criticism was made by Mr. Woodbury. Mr. Woodbury’s background is described at
length infra in connection with Dr. Hromadka’s testimony.
73
an e-mail to a colleague, “[t]his is the peak of the tern and plover nesting season and if

we cut now it may be difficult to go back up if the birds come in and nest low.” PX967 at

USACE5569989. On June 11, 2010, Ms. Farhart explained to her fellow Corps

colleague, Colonel Roger Wilson, that she would continue to cycle releases for the least

terns and plovers, stating,

[a]s you may know, we have been cycling releases from 26,500 cfs to

28,000 cfs for 8 hours every other day to prevent terns and plovers from

nesting on low elevation sandbar habitat. As a result of the flooding

downstream, Gavins Point releases on the low part of the cycle will be

reduced from 26,500 to 22,000 cfs while continuing the 8 hours of 28,000

cfs every other day. This is the peak of the tern and plover nesting season,

so maintain[ing] the cycle is critical to prevent large numbers of nest[s]

from being established on newly exposed habitat. Once the bulk of the

nests are established we will have more flexibility to reduce or eliminate

the cycling.” Id. at USACE5569988.

The Corps continued T&E releases in 2013 and 2014 in the face of increased

downstream flows and higher WSEs. Tr. 4647:10-17, 4649:14-18 (2013),

4650:10-19, 4651:22-4652:1 (2014). In fact, in 2015 the Corps continued to make

T&E releases after learning that the lower 500 miles of the Missouri River from

Nebraska City to St. Louis were three to six feet above flood stage. PX2308 at

USACE0356497. At that time, the Corps acknowledged that reduction in releases

74
would “reduce stages downstream about 1 to 1.5 feet[.]”40 Id. In view of the

foregoing facts, the court finds that the government’s criticism of Dr.

Christensen’s testimony based on Mr. Woodbury’s claim that Dr. Christensen’s

modeling requires “omniscience” is not persuasive.

Second, the government criticized Dr. Christensen’s model because he did not

present modeling or other evidence to show with specificity how he accounted for

releases between the individual reservoirs in the System, but instead presented modeled

releases from only Gavins Point. Tr. 11355:25-11356:9, 11367:25-11371:20

(Woodbury). The court acknowledges that Dr. Christensen presented modeling only for

releases from Gavins Point. However, for flooding in 2007, 2008, 2010, 2013, and 2014,

the court finds that the criticism is not well founded. For purposes of modeling

downstream flood control, the court is persuaded that releases from Gavins Point were

the only relevant releases to consider. The government did not present any evidence to

show how releases among the upper reservoirs would have been relevant in modeling a

“but for” world, where the flooding for the years in question was all below Gavins

Point.41

40
The court recognizes that the 2015 flooding is not at issue in this phase of the litigation, but
finds that this evidence confirms the plaintiffs’ position that in the actual world ESA compliance
has taken precedence over flood reduction and that in the “but for” world the additional releases
mandated by the ESA would not been made and thus would not have contributed to River flows
and flooding.
41
Dr. Christensen noted that the flooding in 2010 involved some System storage concerns, but
explained that the main contributions to additional flooding were the T&E releases made in the
face of downstream flooding. Tr. 4579:25-4582:21.
75
 Third, the government also took issue with Dr. Christensen’s use of 6,000 cfs as

the minimum daily release in the “but for” world on the grounds that in more recent

years, the Corps has had to make higher releases to meet water supply needs below

Gavins Point. Tr. 11366:5-11367:23, 11698:1-11700:16 (Woodbury); DX3015-648. The

court again finds that the criticism is not well founded. To begin, the 1979 Master

Manual explicitly uses 6,000 cfs as the minimum release in order to meet water supply

requirements and Dr. Christensen was modeling the “but for” world using the 1979

Master Manual. Tr. 4570:20-4572:19; PX3 at USACE0004043, USACE0004057-8.

Moreover, to the extent that the minimum release number should have been 8,000 cfs, as

suggested by the government’s evidence, the court accepts the government’s concession

from Mr. Woodbury that an increase of 2,000 cfs would not “drastically change flooding

levels[,]” meaning that the minimum amount under either “but for” scenario would likely

be the same. Tr. 11702:12-19 (Woodbury).

Fourth, the government criticized Dr. Christensen for failing to take into account

the Corps’ actions in reducing its releases at various times when it became aware of flood

risks downstream. The court does not find this criticism persuasive. The fact that the

Corps knew its actions increased flooding during certain periods and changed its releases

for a limited period of time only confirms that the Corps made T&E releases during other

downstream high flow periods when it was on notice that additional releases would result

in higher WSEs and more flooding.42

42
As discussed later in the context of Dr. Hromadka’s testimony, the government’s evidence of
significant rainfall during periods of flooding does not undermine the credibility or reliability of
76
 Finally, the court did not find any of the government’s other criticisms of Dr.

Christensen’s opinions regarding 2007, 2008, 2010, 2013, and 2014 persuasive. As

discussed below in detail in connection with Dr. Hromadka’s expert testimony, the court

does not find the opinions offered by Dr. Mussetter or Mr. Woodbury sufficiently reliable

to cause the court to question Dr. Christensen’s opinions that the T&E releases mandated

by the 2003 BiOp and reflected in the Corps’ new Master Manual would not have been

made in the “but for” world during periods where downstream flooding was evident or

highly likely.

The court finds that Dr. Christensen’s testimony is sufficient to show that the

Corps’ System Changes, which for the years in questions include T&E releases, caused

increased WSEs. The court also finds that Dr. Christensen’s testimony is sufficient to

show that it was foreseeable that by adding flow to the River, the T&E releases would

increase flooding in periods of already high River flows below Gavins Point Dam. The

increased flooding was a direct, natural, and probable consequence of making T&E

releases at times when there was known or expected increased downstream inflows or

flooding.

ii) System Changes and the 2011 Flood

There is no dispute that the 2011 flood was a record-setting flood that involved a

record 60.8 million acre-feet (“MAF”) runoff, the highest since record-keeping began in

Dr. Christensen’s testimony. Flooding usually occurs because of increased precipitation. The
plaintiffs contend that it was the Corps’ T&E releases in the face of foreseeable flooding,
combined with the River Changes made by the Corps to comply with its ESA obligations, that
satisfy plaintiffs’ causation and foreseeability burden in this case. The court agrees.
77
1898. DX0192 at DX0192-0007, DX0192-0016. It is also not disputed that starting in

June 2011, the Corps released a record 160,000 cfs from Gavins Point for many months

to address the record runoff. Id. at DX0192-0026. Prior to that time, 70,100 cfs had been

the record released from Gavins Point in 1997.43 Id.

To understand Dr. Christensen’s “but for” analysis for System Changes with

regard to 2011, the court will first review his testimony as to the differences between the

1979 Master Manual and the new Master Manual. According to Dr. Christensen, the

entire mainstem “[S]ystem is designed to control inflows up to 40 million acre-feet,

March to July, without outflows ever exceeding 100,000 cfs[.]” Tr. 4600:15-19. Dr.

Christensen opined that had the Corps followed the release levels set in the 1979 Master

Manual, and specifically the levels set in Plate 44 in that Manual, flooding in 2011 would

have been less severe. Tr. 4598:25-4599:15. Dr. Christensen opined that had the Corps

followed Plate 44 and the 1979 Master Manual, it would have released more water from

the reservoirs earlier, in late March or early April, and that had the Corps done so, the

Corps would have limited releases from Gavins Point downstream to 100,000 cfs and

thus limited the severity of flooding. Tr. 4592:8-4594:8; PX2060-A at 5, PX2094-A at 4-

16. He recognized in his opinion testimony that there still would have been significant

flooding at 100,000 cfs, but he explained that flood damage would have been greatly

reduced. Tr. 4600:15-4601:12. He explained that “the [2011] flood water levels had

43
The court understands that the 2011 flood was devastating for the plaintiffs. However, as
discussed infra, in order to establish liability for a taking, the plaintiffs were required to establish
causation and foreseeability with regard to the 2011 flood, which the plaintiffs failed to do.
78
increased by as much as five to six feet in the worst areas and at the very least more than

1.5 feet in all [p]laintiff areas[.]” Tr. 4794:11-15.

Dr. Christensen opined that the increased flooding in 2011 was also foreseeable or

a natural, direct, and probable consequence of the Corps having to use Plate VI-1 in the

Corps’ new Master Manual, rather than Plate 44 from the 1979 Master Manual. Tr.

4594:20-4600:11. Dr. Christensen based his opinion on a comparison of the Corps’

response to upper Basin runoff in 1997 and 2011. Tr. 4597:9-4598:4. Dr. Christensen

testified that upper Basin runoff in 1997 and 2011 were similar, but that the record runoff

in the upper Basin in 1997 did not lead to downstream flooding because of the proactive

measures the Corps took to minimize the flooding risk mandated by Plate 44. Tr. 4597:9-

4599:15, 4607:3-4612:3. Dr. Christensen produced a chart which contrasts 1997 releases

to 2011 releases to show that before the new Master Manual revisions, the Corps made

larger releases in 1997 than even the minimum amounts required by the 1979 Master

Manual to avoid flooding. Tr. 4607:3-4612:3; PX2203. He testified that if the Master

Manual had not been changed, Corps personnel would have been focused on flood

control and would have acted in 2011 as they had in 1997. Tr. 4598:1-16, 4624:8-12. He

explained that in the actual world, under the new policy of “balanced” priorities, the

Corps was not allowed to make earlier releases for flood control because flood control

only becomes the highest priority under the new Master Manual when flooding is deemed

imminent. Tr. 4595:5-8, 4598:12-4599:3, 4610:2-4612:3, 4625:17-25; PX5 at

USACE0121577 (“Flood Control carries the highest priority during significant runoff

events that pose a threat to human health and safety[.]”), USACE0121625 (“The flood

79
control purpose of the System will be given the highest System priority during periods of

significant runoff when loss of life and property could occur.”). Dr. Christensen noted

that e-mails show that it was not until April 25 that the Corps decided that upper Basin

runoff could no longer be contained by the reservoirs and only then did the Corps begin

making releases from Gavins Point. Tr. 4618:11-23; PX2206. He also noted that the

Corps was still consulting with FWS regarding T&E releases in April and did not begin

to evacuate the reservoirs until May 7. Tr. 4618:11-4619:5; PX787; PX2206.

Dr. Christensen testified that while Corps personnel consistently explained that

among the reasons for not releasing water from the reservoirs earlier was downstream

flooding concerns, the Corps’ explanation for not making earlier releases in late March or

early April based on concerns over downstream flooding was not consistent with the

Corps’ approach in 1997. Tr. 4622:16-4624:12. In 1997, he testified, the Corps released

water from the reservoirs “despite minor downstream flooding.” Id.

The court has considered Dr. Christensen’s testimony and concludes that

plaintiffs’ causation theory based on a “but for” world in 2011 fails for two primary

reasons. First, and foremost, the plaintiffs have not established how the Corps’ System

releases in 2011 can be considered part of the “single purpose” it has relied upon to

establish causation for the other flood years. The Corps’ System releases in 2011 had

nothing to do with ESA compliance. The court’s conclusion is confirmed by the

independent study commissioned by the Corps to evaluate the 2011 flood. In 2011, the

Corps commissioned four independent non-Corps experts to evaluate the Corps’

80
operation prior, during, and after the 2011 flood.44 The panel provided its findings and

recommendations in its report entitled Review of the Regulation of the Missouri River

Mainstem Reservoir System During the Flood of 2011. See DX0192 at DX0192-0094-9.

In the report, the experts concluded that the Corps’ “decisions related to storage and

evacuation of spring runoff were not influenced or affected by consideration of

threatened or endangered species.” DX0192 at DX0192-0074.45 In addition, in his

separate report entitled 2011 Missouri River Flood Report: Opinions, Bases, Reasons,

Facts and Data, Dr. Grigg explained that in 2011 “operations for purposes other than

flood control (including environmental purposes) were suspended or assigned secondary

priority once significant flooding started and that during the flood the Corps did not

operate for environmental or other purposes in a way to influence flood risk.”46 PX847 at

5. The plaintiffs have based their takings case on the theory that meeting the Corps’ ESA

obligations is the “single purpose” that allows the court to consider all of the Corps’

System and River Changes for all of the years together to determine whether the plaintiffs

have met their causation and foreseeability burden for establishing a taking. As discussed

44
The experts are Dr. Neil Grigg, professor of Civil and Environmental Engineering at Colorado
State University; Mr. Bill Lawrence, Hydrologist in Charge of the Arkansas Red Basin at the
River Forecast Center of the National Weather Service; Mr. Darwin Oekerman, Hydrologist at
the USGS; and Ms. Cara McCarthy, Senior Forecast Hydrologist at the National Resources
Conservation Service at the National Water and Climate Center. DX0192 at DX0192-0094.
45
The court has considered plaintiffs’ argument that the study was biased because Ms. Farhat
was involved in the study and because the Corps performed the study. The court has heard the
testimony and reviewed the study. The court does not find the study was biased.
46
The plaintiffs argue that portions of Dr. Grigg’s analysis support their position that earlier
releases would have led to less flooding. For the reasons stated in the next section of the opinion
the court finds that the argument regarding earlier releases is not supported.

81
in the Legal Standards section of the opinion, the court has accepted plaintiffs’ theory

that the cumulative and combined effects of the Corps’ System and River Changes can

give rise to a taking, to the extent the System and River Changes “serve a single

purpose.” Because the releases in 2011 were not part of the “single purpose” to comply

with the ESA, the flooding caused by the System releases in 2011 cannot be considered

with the other flood years to establish the plaintiffs’ takings claims.

Second, plaintiffs have not established that the 2011 flood by itself meets the

causation and foreseeability tests to serve as an independent basis for a takings claim.

Plaintiffs’ 2011 takings claims turn on their contention that when the Corps began

balancing priorities under the new Master Manual, the Corps abandoned flood control as

its first priority, and this change in priorities directly, naturally, and probably caused the

flooding in 2011. To prove their case, plaintiffs rely on a comparison of conditions in the

upper Basin in 1997 with those in 2011. Tr. 4590:11-4625:25; PX2203; PX2208. Dr.

Christensen testified that his “but for” model for 2011 was based on the Corps’ response

to upper Basin conditions in 1997. See, e.g., Tr. 4590:24-25, 4591:17-20. The court

finds, however, that the evidence established that there were significant differences

between conditions in the upper Basin in 1997 and 2011 and that the premise of

plaintiffs’ takings claims for flooding in 2011 is not supported.

The two major differences that led to different responses by the Corps to upper

Basin runoff in 1997 and 2011 are as follows: first, Basin runoff started earlier in 1997

than in 2011 because the weather was colder in 2011 and, as a result, inflows to the

reservoirs in 2011 were lower in March and April than in 1997. DX0192 at DX0192-

82
0036, DX0192-0050, DX0192-0053, DX0192-0081-2; DX3001-202; DX3015-656;

DX3015-660. Second, runoff in 2011 was twenty percent higher than in 1997, meaning

the runoff in 1997 was significantly less than in 2011 (49 MAF in 1997 compared to 60.8

MAF in 2011). DX0192 at DX0192-0010, DX0192-0016, DX0192-0061. These

differences mean that the Corps’ response in 2011 cannot be fairly equated to the Corps’

response to upper Basin runoff in 1997. Dr. Christensen’s modeling of the “but for”

world depended upon finding that upper Basin runoff in 2011 was virtually the same as

1997. The court finds that Dr. Christensen’s opinions regarding the “but for” world in

2011 did not take into account the significant differences in the timing and volume of the

inflows between 1997 and 2011. As such, the court cannot find that “but for” the new

Master Manual, the Corps would have begun to make releases from the dams earlier and

could have avoided the 160,000 cfs releases that resulted in devastating flooding in 2011.

For similar reasons, the court finds that the increased flooding in 2011 was not the

natural, direct, and probable consequence of the new Master Manual. The plaintiffs

argue that the 2011 flood was the foreseeable result of the Corps’ policy change, which

no longer placed flood control as the Corps’ first priority except when there were threats

to human health and safety. The new Master Manual requirement to balance priorities

did not mean that flood control was ignored by the Corps during March and April 2011,

thus making flooding inevitable. To the contrary, the Corps claims that it did not make

releases in March and April 2011 because it was in fact concerned with downstream

flooding. Tr. 7121:8-7122:6, 7123:11-7132:5 (Farhat); PX691 at USACE1012607 (map

showing the potential flooding hotspots). The Corps’ concerns in March and April 2011

83
demonstrate that flood control, particularly downstream of Gavins Point Dam, was

considered by the Corps in making its System release decisions in 2011. The court

appreciates that when the Corps was faced with downstream flooding in 1997, Corps

personnel made a different call than that of Corps personnel in 2011. The evidence

established that in 1997, Corps decision-makers elected to increase flooding downstream

in March and April because of the large upper Basin inflows the reservoirs were

receiving at that time. In 2011, in contrast, upper Basin inflows did not dictate that the

Corps should begin to make releases in March and April, which is when large releases

could typically cause or increase downstream flooding, because such inflows came later

in April and May. In both 1997 and 2011, Corps personnel made System release

decisions based on their best judgment in light of the information they had at the time.

The plaintiffs’ contention that the government took a flowage easement from

plaintiffs during the 2011 flood because the new Master Manual requirement to balance

priorities meant at some point the Corps would not have enough room in the reservoirs

and would thus need to flood properties in both the upper and lower Basin is not

supported. There are situations where the government has obtained flowage easements

when it knows it will have to flood an area in order to protect one group of landowners

during a flood event at the expense of another group. That is not the case here. Flooding

in 2011 occurred in both the upper and lower Basin because inflows exceeded the amount

of storage available in the six reservoirs that make up the mainstem System, not because

the Corps knew that would happen and then chose to protect one group of landowners

84
over another. The Corps was forced to flood both upper and lower Basin properties to

save the mainstem System.

The court also recognizes that the Corps could have exercised its judgment

differently in 2011 and perhaps minimized some of the terrible flooding that took place in

2011, but the plaintiffs cannot base their takings claims on their challenge to the Corps’

management of the mainstem System. The court heard testimony from several plaintiffs

to the effect that the Corps made the wrong call in failing to recognize the magnitude of

the upper Basin runoff leading up to the 2011 flood. Even if this were true, this court

does not have jurisdiction to consider whether the Corps made the wrong call in its

decision-making in 2011. Objections to the Corps’ management of the mainstem System

in 2011 sound in tort. This court does not have jurisdiction over claims sounding in tort.

See 28 U.S.C. § 1491. In addition, Congress, in the 1944 Flood Control Act, has

immunized the government from tort liability for flooding in such circumstances. 33

U.S.C. § 702c.

For all of these reasons, the plaintiffs have failed to establish causation in

connection with the releases from the System in 2011, and thus will not be able to rely on

the System releases in 2011 to support their takings claims.

iii) River Changes

Dr. Christensen also opined on the cumulative and combined effects of the

changes the Corps has made to the Missouri River channel in order to comply with its

ESA obligations. He testified that to understand the impacts of the River Changes the

Corps has made, it is important to understand the history of the Corps’ past engineering

85
efforts to control flooding on the River. Tr. 4653:4-8. He testified that part of those

efforts involved the Bank Stabilization and Navigation Project (“BSNP”), which was

authorized by the Rivers and Harbor Act of 1945. Tr. 4654:20-25. He explained that the

BSNP river-control structures were constructed by the Corps to (1) stabilize the River

banks and (2) channelize the River for navigation by removing natural side channels and

chutes. Id. Through the BSNP, the Corps “constructed thousands of rock dikes

perpendicular and parallel to the flow that trapped sediment and resulted in … accreted

land and accreted riverbank” that is now farm land. Tr. 4655:1-9. The Corps’ actions

also narrowed the River channel, concentrating faster flows downriver to create a “self-

scouring” channel that improved the flood-carrying capacity of the River. Tr. 4655:10-

24, 4657:15-4658:11; PX383-A. In addition to changing the River channel, the Corps

also constructed levees, which “prevented high [R]iver flows from escaping the

engineered channel and further disconnected the [R]iver from its floodplain.” Tr.

4655:25-4656:2.47

Dr. Christensen testified that the Corps started to make modifications to the River

channel to ameliorate the conditions that led to lost habitat in and adjacent to the River

before 2004. Tr. 4660:22-4661:1. After the 2003 BiOp was issued, however, the Corps

was required to make very specific changes to the System and the River to meet its ESA

obligations. Tr. 4493:7-4494:6, 4660:13-4663:2. Under the terms of the 2003 BiOp, the

47
As Dr. Hromadka also testified, the straighter and smoother the River, the greater its capacity
to carry water and the less prone it is to flooding. As discussed in detail infra, actions taken to
reduce this capacity by notching dikes and revetments and building up sediment in the channel to
make SWH and ESH contribute to increased flooding.
86
Corps was required to make numerous changes to the River channel in order to restore

the River’s “connectivity” to the floodplain, including the construction of shallow water

habitat (“SWH”) and emergent sandbar habitat (“ESH”) for T&E species. Tr. 4661:7-

4662:23, 4676:22-4677:15.

To create SWH the Corps notched numerous dikes and revetments by cutting the

dikes and revetments to allow water to flow through and thereby creating SWH. For

example, between March and June of 2004, the Corps made “427 traditional dike

notches, 119 type B dike notches, 91 revetment notches, 78 chevron type major dike

modifications, 75 bank notches, seven pilot channels, four dredging projects and three

chute restorations” for the purpose of creating SWH. Tr. 4663:3-10; PX123 at

USACE0510836; PX313 at FWS_000087327. SWH is defined in the 2003 BiOp to

mean that in August when there are normal flows, the depth of the SWH will be less than

five feet and the velocity will be less than two feet per second. Tr. 4663:23-4664:7.

Historically, i.e., before the Corps’ construction of the BSNP, the River had more than

100 acres of SWH per river mile. Tr. 4664:8-13; PX545 at USACE0946760. The

current average is five to fifteen acres per river mile. Id. Under the 2003 BiOp, the

Corps is required to ensure that there are 20 to 30 acres of SWH per river mile by 2024.

Id. See also PX17 at PLTF-00007967; PX277 at USACE0719805, USACE0719808. Dr.

Christensen discussed the methods used by the Corps to create in-channel SWH and off-

channel SWH. Tr. 4665:18-4666:14. See also PX545 at USACE0946761. He explained

that, to create in-channel SWH, the Corps lowered dikes and revetments, notched dikes

and revetments, removed dikes and revetments, allowed dikes and revetments to

87
deteriorate through lack of maintenance, constructed chevrons, and “mechanically

constructed shallow undulating [R]iver bottom in the channel[.]” Tr. 4666:1-4667:24.

See also PX545 at USACE0946761. As discussed, the purposes of the notching is to

erode the bank, which moves sediment into the River and deposits it downstream,

creating an undulating River bottom with slow, shallow areas in the River channel. Tr.

4670:2-4671:13. See also PX135 at USACE0003073-4. Dr. Christensen explained that

there is “a substantial cumulative effect” associated with the large number of dike

notches undertaken by the Corps throughout the length of the River, as well as with the

revetment modifications. Tr. 4671:6-13, 4673:9-4674:5. Dr. Christensen also explained

how chevrons create SWH. Tr. 4674:6-4676:11. Chevrons consist of a pair of short

dikes angled closer together so that when water flows through them, as the water spreads

out, it slows down and deposits sediment directly downstream of the chevron, creating

sandbars and SWH. Tr. 4674:6-4676:11.

Dr. Christensen also testified that the Corps created off-channel SWH by

reintroducing chutes and backwater areas adjacent to the River. Tr. 4665:18-22. He

explained that after 2004, the Corps constructed new chutes through dredging and

reopened natural chutes that had been previously cut off to channelize the River. Tr.

4691:1-15. Dr. Christensen explained that without chutes, the River had deepened and

narrowed which increased its flow capacity, thus minimizing flooding. Id. He testified

that “[b]y design, [chutes] create[] shallow, slow-moving areas within the chute.” Tr.

4692:8-20. According to the Corps, “[t]hrough erosion and deposition, the land along

constructed chutes should consist of a variety of elevations which create increasing

88
acreage of flooded vegetation as River stage[s] increase[]. This is the desired progression

expected of constructed chutes.” PX2209 at EPA0044497. Dr. Christensen explained

that chutes are designed to erode over time, which, together with the sand material

dredged from the chutes during their construction, introduces additional sediment into the

River, leading to aggradation and increasing hydraulic resistance. Tr. 4692:6-4693:5,

4694:25-4695:15. See also PX204 at USACE0721635-41. He testified that chutes

decrease flood control by “divert[ing] water from the deeper swift main channel into a

shallower, slower side channel.” Tr. 4697:3-8. This diversion, he explained, results in

the water moving “laterally into the floodplain during high flows[,]” and “reduc[ing the]

average velocity of channel flows and channel flood carrying capacity.” Tr. 4693:3-5,

4697:5-25. He opined that there is “a significant cumulative effect from chutes and other

shallow-water habitat modifications throughout the length of the [R]iver.” Tr. 4698:1-5.

Dr. Christensen used three analytical methods to determine the impact of the River

Changes described above on WSEs and to calculate the increase in flooding caused by

these Changes. Tr. 4700:15-4701:21. First, he examined expected WSEs from existing

United States Geologic Survey (“USGS”) gage curves over time to determine how the

River was expected to respond, as compared to how it has in fact changed over time. Tr.

4700:21-23. Second, he compared current flood frequencies against what the Corps had

anticipated in the Corps’ 2003 Flood Frequency Study, which was completed before the

Corps made the River Changes and before this litigation began. Tr. 4700:24-4701:5.

Third, he compared the Corps’ 2011 Global Positioning System (“GPS”) water level

measurements with the results of the two other studies as means of verifying his results.

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Tr. 4701:6-12. Dr. Christensen testified that each of the results were consistent with each

other and, in his opinion, confirmed the soundness of his approach. Tr. 4701:15-4702:9.

He explained that his analysis showed that WSEs have increased significantly at higher

flows than what had been anticipated by the data before the Corps made any of the River

Changes, and that he attributed the higher WSEs to the River Changes. Tr. 4698:25-

4700:14, 4744:13-20, 4754:21-4756:13. See also PX2089-A at 1-5. Because the results

could be verified with actual data, Dr. Christensen said that using a complex model like

HEC-RAS was not necessary. Tr. 4702:10-23. As he stated, with the actual data

available “there was no need to substitute a less accurate measuring stick, such as HEC-

RAS.”48 Id.

His conclusions from his analyses can be summarized as follows: first, “the

structural changes and sediment dumping have partially reversed the BSNP engineered

[R]iver” and have made it “shallower and slower” in places, and thus it “carries less

floodwater.” Tr. 4698:25-4700:14. Second, “there has been a dramatic increase in flood

frequency . . . [and] in floodwater levels” since 2004. Id. Third, the changes in WSEs at

higher River flows cannot be explained by natural events because there were no natural

events before the 2011 flood that could have caused significant changes to the River’s

flood-carrying capacity. Tr. 4744:13-4745:13. Dr. Christensen noted, for example, that

between 2000 and 2006, there had been a drought in the Missouri River Basin, which

48
Dr. Christensen explained that to use HEC-RAS would require a modeler to specify many
thousands of parameters subject to many judgment calls and thus a HEC-RAS model would be
very subjective. Tr. 4703:5-8, 4712:14-18.
90
would not have caused any change in the River to explain the changes in WSEs. Tr.

4745:2-6. He also noted that “there’s been no natural events that could cause this

increase prior to the Corps’ changes to policies and procedures. There was a drought and

there was no high flows that could . . . dramatically change the river like that, for 2000 to

2006.” Tr. 4700:9-14.

Dr. Christensen explained his gage curve analysis as follows. He testified that

there are two types of gage on the River: those which measure water levels at a particular

point and those that also measure water flows or discharge, in addition to measuring

water levels at a particular point. Tr. 4713:8-4714:14. Those gages that measure river

discharge or flow are also converted into gage curves which identify both WSE levels

and expected water levels at certain flows. Tr. 4713:20-25, 4714:15-4715:12. Dr.

Christensen testified that both types of gage are placed up and down the River both above

and below Gavins Point Dam. Tr. 4714:1-14. He explained that when a River channel

changes, a new gage curve will be set to reflect those changes, as happened after the 2011

flood when the gages revealed substantial water level increases on the River at higher

flows. Tr. 4714:24-4715:16. See also PX2065. He testified that he compared the pre-

2004 gage curves and modeled releases in the “but for” world with real world average

daily water levels measured at the river discharge gages in 2010 and 2011. Tr. 4720:5-

22. He testified that when he examined the USGS gages between dams and below

Gavins Point, he noted that “particularly at high flows, the actual water levels are

substantially higher [post-2004] than pre-2004 water levels at the gages.” Tr. 4720:23-

4721:4. See also PX2060-A at 6-11. He opined that “the [R]iver channel has changed

91
such that moderate and high flows result in higher WSEs post-2004 than would have

resulted from the same flows pre-2004.” Tr. 4721:1-4. He explained that he attributed

the changes in WSEs to the River Changes made by the Corps because the degree of

change was not anticipated by the prior studies. Tr. 4699:14-4700:8. He pointed to the

Corps’ 2003 Flood Frequency Study, which, before the River Changes had been

undertaken, predicted that the River was becoming stable and thus WSEs were not likely

to change. Id.; PX2211 at USACE4640373. Dr. Christensen then ran simulations

showing for each of the gages what would have happened without the Corps’ River

Changes and without the Corps’ System releases for T&E species. He then compared the

actual flows with his “but for” simulation to determine the difference in WSEs between

the actual and “but for” worlds. Tr. 4735:7-14; PX2060-A at 12-24. Based on his gage

curve analysis, Dr. Christensen concluded that the “WSEs at each of the USGS gages on

the [R]iver have increased since 2004, for all moderate and high flow levels[,]” and that

“[t]he increase in WSEs is particularly stark at high flow levels.” Tr. 4738:11-18,

4754:22-4755:10.

Dr. Christensen explained that he extended his gage analysis to each of the

plaintiffs’ properties by interpolating the results of his analysis between gages to the river

miles adjacent or near the plaintiffs’ properties, which he verified using the Corps’ 2003

Flood Frequency Study. Tr. 4768:16-4773:9; PX2089-A at 1-5. He explained that

because none of the Corps’ River Changes are located at a specific gage location, his

interpolation of water surface levels was probably conservative because it would not

reflect higher WSEs at a particular property. Tr. 4770:4-16. As noted, he testified that he

92
also used the Corps’ 2011 GPS study of actual water levels to verify his interpolation

analysis and that the results matched his actual world results. Tr. 4779:25-4783:16;

PX2060-A at 26-35. Dr. Christensen concluded, based on his analyses, that “the flood

carrying capacity of the Missouri River below Gavins Point Dam has [been] dramatically

reduced” and that there has been “a marked and significant increase in flood water levels

and frequency of flooding” following the Corps’ System and River Changes. Tr.

4793:23-4794:17.

The court has considered Dr. Christensen’s opinion testimony together with the

opinion testimony of Dr. Hromadka, discussed infra, and finds that the Corps’ River

Changes have, together with the Corps’ System Changes, caused WSEs to rise higher

than they would have risen without these Changes and that this rise in WSEs has led to

more flooding or more severe or longer flooding than would have occurred had these

Changes not been made by the Corps.

The court has considered the criticisms of Dr. Christensen’s gage analysis by

government witnesses and the government’s experts Mr. Woodbury and Dr. Mussetter

and has not found these criticisms persuasive. To begin, it is significant that neither Dr.

Mussetter nor Mr. Woodbury acknowledge any impactful change in the River attributable

to the Corps’ actions to create SWH and ESH in the River channel. See Tr. 4825:13-

4826:15 (Christensen), 5398:3-6 (Hromadka), 9897:15-24, 9900:5-9901:9 (Mussetter),

10784:14-24; DX3015 (Woodbury). The court agrees with Dr. Christensen and Dr.

Hromadka, two well respected and acknowledged experts in the fields of hydrology and

hydraulics, that Mr. Woodbury’s and Dr. Mussetter’s conclusions defy both common

93
sense and principles of hydrology and hydraulics.49 Tr. 4826:10-15 (Christensen),

5398:3-21 (Hromadka). There cannot be any serious debate that the type of changes

made by the Corps to the River channel, coupled with the T&E releases during periods of

higher downstream inflows, would foreseeably cause higher WSEs than would exist

without those System and River Changes. The government’s fundamental challenge to

Dr. Christensen’s analysis is that said analysis only shows higher WSEs at higher flows.

Tr. 10306:8-10314:20, 10317:9-10318:18 (Mussetter); DX3014-305–DX3014-311;

DX3014-313–DX3014-315. The government argues that if Dr. Christensen is correct

and the Corps’ actions have caused higher WSEs, the WSEs should also be higher at

lower flows. Tr. 10274:4-10275:2, 10314:16-20. The plaintiffs respond that the

government’s assumption that River Changes would result in higher WSEs during

periods of low flow is based on the government’s misunderstanding of the plaintiffs’

experts. The plaintiffs explain that Dr. Christensen and Dr. Hromadka both opined that

by changing the River, the Corps has changed the flow and velocity of the River, thus

diminishing its flood-carrying capacity, meaning that the same amount of flow in the past

would not have caused the River to rise as high as it now does. As Dr. Hromadka

explained, the fact that WSEs are not higher at lower flows is not how a river system

works. Tr. 8464:23-8465:5. As discussed later in the discussion of Dr. Hromadka’s

testimony, the Corps’ River Changes have created changes in velocity at various points

49
Mr. Woodbury, the government’s expert, admitted on cross-examination that dike notches can
change the velocity and depth of a river and, in this way, can cause higher water surface
elevations. Tr. 11590:24-11591:9.
94
along the River causing slower flows, which allows water to back up during periods of

high flows, which in turn leads to higher WSEs. The government’s criticisms of Dr.

Christensen’s opinions on this point are not persuasive.

The government’s criticisms of Dr. Christensen’s reliance on the USGS gage

curves are also unpersuasive. The government criticizes Dr. Christensen for interpolating

the USGS gage curves for each plaintiff and for using the Corps’ 2003 Flood Frequency

Study. Tr. 4742:23-4746:16. First, the Corps itself interpolates USGS gage curves for its

work. Tr. 8335:10-8336:16 (Remus). Second, the Corps relies on the Corps’ 2003 Flood

Frequency Study to this day. Tr. 8844:8-11 (Shumate) (“The flow frequencies are still

used today.” Tr. 8844:11). The Corps’ 2003 Flood Frequency Study was considered to

be the “gold standard” and “‘recommended for all uses related to water surface elevations

on the Missouri River[.]’” Tr. 4751:24-4752:18, PX2212 at USACE461090. Dr.

Christensen cannot be criticized for relying upon the Corps’ 2003 Flood Frequency

Study. The fact that neither Dr. Mussetter nor Mr. Woodbury used it in their modeling

makes their work suspect.

Finally, as discussed above in the Legal Standards section, the court does not

agree with the government that in order to establish causation and foreseeability based on

the Corps’ System and River Changes, a separate study of the impacts from each

individual River Change near each individual property for each year was required. As

discussed above, the court is persuaded that Dr. Christensen and Dr. Hromadka have

properly evaluated the issues of causation and foreseeability based on the cumulative and

95
combined impacts associated with the System and River Changes made by the Corps to

meet the Corps’ ESA obligations.

b. Dr. Hromadka

As discussed above, the plaintiffs retained Dr. Theodore Hromadka II, along with

Dr. Christensen, to prove causation, foreseeability, and severity in connection with their

takings claims. Dr. Hromadka, Ph.D., Ph.D., Ph.D., D.WRE, P.E., P.G., P.H., is a highly

respected and established expert in engineering and modeling with a focus on hydrology

and hydraulics. He has almost 45 years of experience working in engineering, planning,

flood control, groundwater analysis, transport mechanics, and water resources. Tr.

5051:18-24; PX2001. He has a B.S. and an M.A. in Applied Mathematics and Computer

Science from California State University (1972 and 1976, respectively). Tr. 5044:17-25;

PX2001. He also holds an M.S.in Water Resources Engineering and a Ph.D. in Water

Resources from the University of California at Irvine (1977 and 1980, respectively). Tr.

5045:1-7; PX2001. He has an additional Ph.D. in Applied Mathematics and Systems

Modeling from the University of California at Irvine (1985) and a third Ph.D. in Methods

in Engineering Mathematics in the theme of Advanced Transport Modeling Analysis

from the University of Wales in England (2001). Tr. 5045:8-14; PX2001.

He holds numerous professional licenses. Tr. 5045:18-5046:24; PX2001. He is a

Professional Civil Engineer, licensed in Arizona, California, Hawaii, Illinois, Iowa,

Nevada, New York, and Ohio. Tr. 5046:6-11; PX2001. He is a licensed Geoscientist

(licensed to practice, geology, geophysics, engineering geology, environmental geology,

hydrogeology, and soil science); a Professional Geologist; a certified Ground Water

96
Professional and member of the Association of Ground Water Scientists and Engineers; a

board certified Environmental Scientist and member of the American Academy of

Environmental Engineering Scientists (“AAEES”); and a certified Professional

Hydrologist and member of the American Institute of Hydrology. Tr. 5045:12-5046:24;

PX2001.

He has received numerous awards and honors, including the United States Military

Academy, West Point, Award for Excellence, and Chair, Mathematical Sciences Center.

Tr. 5047:2-5048:7. Dr. Hromadka is currently a professor at West Point. Tr. 5049:11-13.

He is also a principal in Hromadka & Associates, a firm located in Rancho Santa

Margarita, California. Tr. 5050:11-12; PX2001.

He has testified in dozens of cases, and his accepted areas of expertise and

specialization include: hydrologic and hydraulic analysis and modeling; flooding

evaluation and floodplain inundation; groundwater assessment; sediment transport;

rainfall and atmospheric science; flood protection systems, including levees; statistics and

probability; and computational modeling. Tr. 5048:24-5049:9, 5051:1-5052:20; PX2001.

Dr. Hromadka was engaged by the plaintiffs to analyze whether the flooding

alleged to have taken plaintiffs’ property interests was caused by the Corps’ System and

River Changes and if so, how the Corps’ actions, either alone or in combination with

other causation factors, led to the flooding in question. Tr. 5052:22-5053:21. As part of

his assignment, he reviewed each of the plaintiffs’ flooding claims to determine whether

the flooding they identified was caused by the Corps’ System and River Changes.

Specifically, like Dr. Christensen, Dr. Hromadka explained that the Corps’ actions he

97
reviewed included changes to the Corps’ operation of the System, including changes to

the Corps’ reservoir storage operations and releases from the System (“System

Changes”). Tr. 5053:23-5054:15. He also reviewed the Corps’ changes to the BSNP,

together with the Corps’ implementation of the MRRP (“River Changes”). Id.

Dr. Hromadka acknowledged that some of the changes to the System and to the

River began before 2004. Tr. 5054:23-5055:3, 5100:12-5101:13. He focused his

analysis on the acceleration of the Corps’ System and River Changes in 2004, which

were made to implement the 2003 BiOp, to determine whether these Changes resulted in

greater flooding by raising WSEs. Tr. 5054:23-5055:3.

Dr. Hromadka testified as to the work he undertook to formulate his opinions,

which included: developing a sedimentation study; preparing a groundwater model;

preparing a correlation analysis to isolate causation factors for each plaintiff’s property;

and conducting statistical investigations to evaluate trends and patterns in flooding. Tr.

5055:25-5056:20. He also testified that he reviewed the computer modeling of the

government’s experts. Tr. 5056:21-22. Based on his studies, modeling and analysis, he

offered the following opinions. First, he opined that “[t]he evidence and analysis results

show that the [Corps’ System and River Changes] . . . have impacted and changed the

Missouri River[,] causing an enhanced flood risk, as well as recurrent flooding in the

Missouri River Basin that will continue into the future.” Tr. 5056:25-5057:6. Second, he

asserted that “the evidence and analysis results show that but for the [Corps’ System and

River Changes] . . . . the flooding at each [plaintiff’s] property either would not have

occurred or would have been significantly less severe in scale and/or duration.” Tr.

98
5057:7-15. He examined each property and each claimed flooding event to determine the

differences between the actual and “but for” worlds by using the WSEs derived from the

work of Dr. Christensen. Tr. 5232:13-5236:12. He prepared tables to show the

difference in WSEs with and without the Corps’ System and River Changes. Tr.

5232:19-5233:18. Dr. Hromadka presented a chart for each property with dates for each

flooding claim, the comparative WSEs for each claim, and average monthly rainfall totals

for each claimed period of flooding.50 Id. Third, he opined that the Corps “introduced

significant quantities of new sediment into the [R]iver, . . . which led to areas of

sedimentation and contributed to increased water surface elevations.” Tr. 5057:16-

5058:4. Fourth, he testified that the Corps, “through active disassembly or failure to

50
At closing argument, the plaintiffs asked the court to have Exhibit PX2025-A, which included
all of Dr. Hromadka’s charts and which the court admitted into evidence as a demonstrative
exhibit, to come into the record as substantive evidence. The government has not specifically
objected to the plaintiffs’ request. The court has considered the plaintiffs’ request and has
determined that the charts, which the government had been given in advance of Dr. Hromadka’s
testimony and were available for cross-examination, are properly considered as part of his
opinion testimony and thus may be relied upon as opinion evidence by the court in this case. See
United States v. Gardner, 611 F.2d 770, 776 & n.3 (9th Cir. 1980). In a judge-tried case, the
court has substantial discretion to consider all of the evidence admitted. See Minebea Co. Ltd. v.
Papst, 444 F. Supp. 2d 68, 170 (D.D.C. 2006). Dr. Hromadka opined that the Corps’ System and
River Changes resulted in higher WSEs than would have occurred without the Corps’ System
and River Changes. Based on his review of the data and analysis that Dr. Christensen prepared,
Dr. Hromadka examined each plaintiff’s property and opined that the additional WSEs caused
more significant flooding and damage to property than would have occurred without the Corps’
System and River Changes. The plaintiffs at this stage of the litigation were not required to
quantify the precise damage to their properties, but they were required to establish that the
Corps’ System and River Changes they identified caused foreseeable flooding to their properties
that would not have occurred without those Changes. The charts show the basis for Dr.
Hromadka’s conclusion that the WSEs were elevated compared with what they would have been
“but for” the Corps’ System and River Changes and, based on the WSE differences, they support
Dr. Hromadka’s conclusions regarding greater flooding. The charts are part of Dr. Hromadka’s
opinion testimony and the WSEs he determined caused greater flooding have been relied upon
by the court in deciding liability.

99
maintain [the BSNP], caused the degradation of BSNP river control structures, which led

to the erosion, sedimentation, and increased hydraulic resistance.” Tr. 5058:5-13,

5235:12-15, 5492:12-16. Fifth, he opined that “[t]he increased water surface elevations

caused by the [Corps’ System and River Changes] . . . caused in whole or in part

increased groundwater levels, blocked drainage, and seepage on the [plaintiff’s]

properties.” Tr. 5058:14-24. Sixth, he asserted that “weather-related events contributed

to cause the flooding in question, [but] those events alone cannot explain the increased

frequency, severity and duration of the flooding experienced since 2006.” Tr. 5058:25-

5059:4. Dr. Hromadka testified at trial that “[t]here obviously cannot be flooding without

water.” Tr. 5059:5. Seventh, he opined that the government’s experts have not directly

refuted the plaintiffs’ theory of causation, which is “based upon a transformation of the

[R]iver and the cumulative effects of the [System and River Changes.]” Tr. 5059:6-10,

5493:4-8. Eighth, he asserted that the government’s experts’ HEC-RAS models are

flawed and “none of [these models] are an accurate representation.” Tr. 5059:11-5060:6.

Ninth, he opined that the government’s experts’ opinions “are inconsistent with the

credible eyewitness observations of the [p]laintiffs who relate a consistent observation of

a changed [R]iver since 2006.” Tr. 5060:7-10. Finally, he explained that the government

experts’ opinions “are not consistent with the actual observations of the . . . [plaintiffs] as

[to] the macro . . . and cumulative flooding effects of the [Corps’ System and River

Changes.]” Tr. 5060:11-15.

Dr. Hromadka explained that for purposes of his expert opinions, he used the word

“flooding” to represent four different types of flooding: overbank, levee overtopping,

100
blocked drainage, and seepage. He explained that: (1) overbank flooding (without levee

overtopping) occurs when surface water leaves the River bank and flows directly onto the

land; (2) levee overtopping flooding occurs where surface water flooding is so high as to

overtop a levee, which can then lead to levee failure; (3) blocked drainage flooding

occurs where surface water remains on the land and cannot drain off the land because

culverts and/or natural drainage are blocked by a high WSE in the River; and (4) seepage

flooding occurs when the land is inundated by rising groundwater or when surface water

on low points of the property cannot drain back into the ground due to oversaturation. Tr.

5064:1-19, 5068:20-5069:8, 5234:5-14. In this case, Dr. Hromadka often analyzed

blocked drainage flooding and seepage flooding together as a single type of flooding. Tr.

5234:5-14. He noted that not every inundation of property gave rise to a takings claim.

Tr. 5063:9-25. He acknowledged that landowners will accept or tolerate a certain amount

of flooding that does not interfere with their use of the land, a phenomenon he termed

“tolerance.” Tr. 5062:18-5063:25. According to Dr. Hromadka, “tolerance” explains

why some plaintiffs claimed a taking based on flooding that only interfered with their

property at planting times, but not during times when there was flooding on their property

but crops had not yet been planted or harvested. Id.

Dr. Hromadka testified that in determining causation for the flooding on each of

plaintiff’s properties, he grouped plaintiffs together according to common flood factors,

which resulted in five groups of plaintiffs. Tr. 5078:21-5085:9. He testified to the

following groups:

101
 Group 1 is located above Sioux City, Iowa. Tr. 5080:4-21. Dr. Hromadka

explained that this portion of the River remained closest to the historical River, meaning

the River in this area is still “meandering, winding and shallow with sandbars and side

channels.” Tr. 5080:4-9. There are no levees in this area. Tr. 5080:10. The Corps has

built ESH in this region. Tr. 5080:11-12. Flooding only occurred in 2011 in this region

of the River. Tr. 5080:13-15. For the reasons discussed above in connection with Dr.

Christensen, the court has determined that the plaintiffs failed to prove that the System

Changes were the “but for” cause of flooding in 2011.

Group 2 is located from Sioux City, Iowa to Omaha, Nebraska. Tr. 5081:4-5. Dr.

Hromadka testified that this area had been significantly altered from the natural River.

The Corps used BSNP structures, including dikes and revetments, to channelize the River

and protect banks from erosion. Tr. 5081:7-17. He also testified that to create the self-

scouring channel, the Corps removed natural side channels and chutes. Tr. 5081:10.

There are no federal or PL 84-99 levees in this area.51 Tr. 5081:5-6. Dr. Hromadka

testified that after 2004, the Corps engaged in a variety of activities to create SWH in this

area, including constructing backwaters, chutes, and dike notches. PX2006. As a

51
The court heard extensive testimony from the government’s Corps witnesses and several
plaintiffs regarding the levees that were built to protect properties from flooding. There are three
types of levees relevant to flooding in this case: federally constructed PL84-99 levees (e.g. L-
575, L-550), which were built by the federal government but are maintained by levee districts
that receive funding for levee maintenance if the districts comply with certain federal standards;
non-federally constructed PL 84-99 levees (e.g. Union Township, Holt County #10), which were
built by landowners and are accepted into the PL 84-99 program for maintenance; and private
levees that have been constructed by the plaintiffs and are not required to meet federal
requirements. While some federal levees in the United States are both built and maintained by
the federal government, no such levees are relevant to the claims at issue in this case.
102
consequence, he explained, this area has suffered flooding largely from overbank

flooding. PX2006. He opined that the flooding in this reach of the River is “a result of

[a] combination of [System and River Changes].” Tr. 5081:16-17.

Group 3 is located from Council Bluffs, Iowa to Holt County, Missouri. Tr.

5081:24-25. Dr. Hromadka explained that the federal levee system begins north of

Council Bluff on the east side and runs continuously for 100 miles to Holt County. Tr.

5082:2-6. He testified that the Corps had channelized this area with dikes and revetments

to protect banks from erosion and removed natural side chutes and channels, just as it did

in Group 2. Tr. 5082:7. He testified that the Corps undertook the same actions to create

SWH in this reach of the River as it did in Group 2. Tr. 5082:8. Dr. Hromadka noted

that flooding in this region started in 2007 and continued in 2008, 2010, 2011, 2013, and

2014. Tr. 5082:9-19. He testified that the plaintiffs in this reach of the River have

experienced overbank flooding, as well as seepage and/or blocked drainage flooding. Id.

He opined that the flooding in this area of the river was “the result of a combination of

[the Corps’ System and River Changes.]” Tr. 5082:17-19.

Group 4 is located in the area of Holt County, Missouri. Tr. 5082:25. Dr.

Hromadka testified that, like Groups 2 and 3, this reach of the River was channelized

through the BSNP. Tr. 5083:2-3. He testified that this area has a mix of federal, PL 84-

99, and private levees. Tr. 5082:25-5083:1. He explained that in this reach of the River,

the Corps has undertaken the same actions to create SWH as it has in Groups 2 and 3. Tr.

5083:4-5. He pointed out that this area, and Holt County in particular, has the largest

number of government created habitat sites intended to meet the Corps’ ESA obligations

103
of any county on the River.52 Tr. 5083:6-7. He testified that the properties in this reach

have experienced the most devastating and recurrent flooding. Tr. 5083:8-10. The

plaintiffs in this area experienced flooding in 2007, 2008, 2010, 2011, 2013, and 2014.

PX2006. Dr. Hromadka opined that the flooding in this region was the “result of a

combination” of the Corps’ System and River Changes. Tr. 5084:9-10.

Group 5 is located south of Holt County, Missouri. Tr. 5084:14-16. Dr.

Hromadka testified that this area has also experienced River channelization by the Corps,

similar to Groups 2, 3, and 4. Tr. 5084:17-19. He testified that the Corps undertook the

same actions to create SWH in this reach of the River as it did in Groups 2, 3, and 4. Id.

As such, he explained that this area, as in Groups 2, 3, and 4, has had dikes and

revetments notched and chutes reconstructed. Id. Dr. Hromadka opined that the flooding

in this region of the River was a result of a combination of the Corps’ System and River

Changes. Tr. 5085:3-4.

Similar to Dr. Christensen, Dr. Hromadka began his analysis of plaintiffs’ claims

by analyzing how the Corps is changing the Missouri River. Dr. Hromadka testified that

the Missouri River is “the most highly engineered river in the United States.” Tr.

5087:23-5087:25. He testified that the River is being changed with new engineering

projects to create SWH for the benefit of pallid sturgeon and to create ESH for the benefit

of interior least tern and piping plover. Tr. 5086:9-5090:22. He noted that the 2003

52
As noted above in the Background Facts section, the government has acquired property along
the River and has converted those properties into habitat sites.

104
BiOp required 20 to 30 acres of SWH per river mile from Ponca, Nebraska to St. Louis,

Missouri, which is 15,060 to 22,590 acres of SWH in total. Tr. 5088:8-12; PX158 at

USACE0473411; PX277 at USACE0719811. Dr. Hromadka explained how SWH is

created by notching dikes and revetments, allowing the same to deteriorate, dredging

chutes, and creating backwaters and chevrons.53 Tr. 5088:13-24. Dr. Hromadka

explained that chutes are “secondary channels that naturally occurred on the [R]iver pre-

channelization,” and he testified as to how the Corps has reconstructed chutes to move

the River laterally, thus allowing it to reconnect with its floodplain, with the expectation

that the chutes will “erode and expand over time.” Tr. 5092:14-5093:9. He explained

that chutes can “bring[] water closer to levees in high-water events” and can increase the

risk of seepage beneath levees, which can lead to levees collapsing. Tr. 5093:10-5094:5.

He explained that creating chutes also changes the River by reintroducing sediment into

the River during construction. Tr. 5094:5-5095:8. See also PX158 at USACE0473428;

PX390 at USACE0465824, USACE465827-8.

53
Representatives of the Corps testified at trial that BSNP structures are maintained using a
“construction reference plane” or CRP, described as “a hypothetical sloping water surface
elevation[.]” Tr. 8992:23-8999:25 (Chapman). According to these Corps witnesses, the Corps
completes annual inspections and compiles a priority list of structures needing repair. Tr.
9019:1-21 (Chapman), 9212:13-16 (Pridal). The Corps witnesses’ testimony suggested that
these structures are now maintained at a lower height to minimize the adverse effects these
structures may have on flood stages. Tr. 9002:6-9003:21, 9149:3-12 (Chapman), 9214:16-
9216:11 (Pridal). The plaintiffs maintain that by virtue of limiting maintenance of these
structures, the Corps is allowing for more sediment to enter into the River, which is consistent
with the Corps’ obligation to build SWH. Various Corps witnesses concurred that by allowing
dikes and revetments to deteriorate, the Corps was also increasing the amount of SWH by
allowing banks to erode. Tr. 1727:9-12 (Bitner), 9214:16-9216:11 (Pridal).

105
 According to Dr. Hromadka, the Corps has modified thousands of river-control

structures to create SWH. Tr. 5097:14-5098:12. As of 2014, the Corps had undertaken

1,697 dike notching actions, 354 major modification actions, 63 dike lowering actions, 36

dike extension actions, 39 side-channel chute actions, 20 revetment chute actions, 14

backwater actions, and 3 channel widening actions. PX277 at USACE0719815. The

Corps estimated that in 2014, there were approximately 11,211 acres of SWH in the

Missouri River. Id. at USACE0719811. Dr. Hromadka testified that dike notching

introduces sediment into the River and “leads to expected erosion and/or sloughing of the

bank” and, depending on the size and location of the notch, dike notching can create one

to six acres of SWH in the River channel. Tr. 5097:20-25; PX158 at USACE0473422-4,

USACE0473427; PX169. He further testified that he focused his attention on the River

Changes after 2004 because in 2004 the Corps accelerated its SWH creation activities to

meet its obligation to create 1,200 acres of new SWH by early summer. Tr. 5100:17-

5101:13; PX106 at USACE0282629-30; PX123 at USACE0510833-5. The government

admitted in court filings that the Corps’ habitat-creation activities in 2004 were

“unprecedented.” PX123 at USACE0510835 (internal quotation marks and citations

omitted). In addition, Dr. Hromadka noted that although the government said notching

would only take place next to government-owned property, “[n]otches were constructed

along both public and private property . . . [e].g. Blodgett Farms, Ideker Farms, and Harry

Larson’s farm.” .54 Tr. 5103:23-5105:1; PX513.

54
These plaintiffs have based their takings claims in part on the erosion of their property.

106
 Dr. Hromadka noted that there were Corps personnel, including Geoffrey

Henggeler and Don Moses, Corps geotechnical engineers, who at trial expressed concern

that notching and recreating chutes can adversely impact levees because of erosion. Tr.

5093:8-5094:1, 5108:20-5109:17. See also Tr. 3986:4-14 (Henggeler), 4030:6-4031:1

(Moses). Dr. Hromadka noted that in one of its post-2011 studies, the Corps suggested

that underseepage from dike notching and SWH construction may have led to levee

failures in 2011. Tr. 5128:21-5129:25; PX555 at USACE3590194-5. In addition, Dr.

Hromadka referenced the 2011 National Research Council Study, which stated that

“removing revetments along the navigation channel in the name of ecosystem restoration

may threaten farmland and infrastructure, as well as reduce depths of the navigation

channel.” Tr. 5111:15-5112:15; PX17 at PLTF-00008016.

It was against this backdrop that Dr. Hromadka explained how the Corps’ River

Changes interfered with the River’s equilibrium, which in turn caused more flooding. Tr.

5121:24-5124:9. He explained that “rivers tend to try to reach equilibrium between the

various processes that are going on.” Tr. 5122:8-10. Dr. Hromadka explained that

“[r]ivers tend to equilibrate . . . with regard to channel shape, channel slope, sediment

transport, and streamflow velocity[.]” Tr. 5122:13-16 (quoting PX814 at

USACE7478345). Dr. Hromadka added that “[w]hen one of these characteristics [of a

river] changes, the others also change until the river again is in equilibrium[.]” Tr.

5122:21-24 (quoting PX814 at USACE7478345). Dr. Hromadka explained that by 2007,

when the first high water event occurred after the Corps’ River Changes began in earnest

in 2004, “flooding resulted and then has continued and will continue.” Tr. 5123:20-22.

107
In support, he noted that half of the highest River stages recorded in the length of the

River at issue in this case have occurred since 2006 in the counties with the largest

number of River Changes. Tr. 5131:22-5135:22; PX2007; PX2008. He testified that this

pattern is consistent with a re-engineered River. Tr. 5132:6-8.

As noted above, Dr. Hromadka supported his conclusions with his various studies.

First, he testified regarding his sedimentation study. Tr. 5137:3-5158:2. He used

bathymetry data55 he received from the Corps, covering river mile 735 down to river mile

500 at intervals of 0.1 miles on various dates between 1990 and 2012 and covering river

miles 498 to 400 at intervals of 0.05 to 0.1 miles on various dates between 1994 and

2014. Tr. 5137:10-16. With these data, he created a model to determine whether

sediment in the River was accumulating, which would mean the River was aggrading in

certain locations, or decreasing, which would mean that the River was degrading in

certain locations. Tr. 5137:22-5141:15. He examined the sources of new sediment added

to the River from various SWH projects and noted that, for example, in a seven-week

period in 2004, the Corps dredged more than 450,000 cubic yards of sediment during two

SWH projects, which the Corps then deposited into the River. Tr. 5141:17-5142:12. He

also noted that in one year, 2009, the Corps added more than three million cubic yards of

sediment to the River on the 100-mile stretch of the River between river miles 691 and

592, which he explained was equal to having 152,000 super dump trucks full of sediment

55
Bathymetry data is the measurement of the size, shape, and depth of a body of water.

108
dumped into the River or an amount of sediment approximately the size of the Great

Pyramid of Giza added into the River. Tr. 5142:13-15, 5146:22-5147:13; PX2151.

Dr. Hromadka explained that his sedimentation study showed “significant changes

in [R]iver geometry[.]” Tr. 5155:8-9. He testified that “[s]ediment is accreting along

banks” and “[a]reas of sediment deposition and sediment erosion are observable[.]” Tr.

5155:11-20. Specifically, he testified that areas of sediment deposition along the banks

exhibited low flow velocity. Tr. 5155:21-5156:3. He further explained that the addition

of large quantities of heavy sediment into the River has increased hydraulic resistance

and has caused an increase in WSEs, which in turn has caused increased incidents of

seepage flooding, increased incidents of blocked drainage flooding, increased incidents of

overbank flooding, and increased incidents of levee overtopping. Tr. 5168:3-5169:4. Dr.

Hromadka testified that his conclusions regarding sedimentation effects have been

confirmed by the USGS rating curves examined by Dr. Christensen, which show not only

that WSEs are increasing, but also that WSEs have increased at a greater rate for high

flows more recently, meaning that the same high flows are now resulting in higher WSEs

than before 2004. Tr. 5172:6-5173:23; PX2018-A.

Dr. Hromadka responded to the government’s criticisms of his sedimentation

study. Tr. 5203:14-5208:14. He explained the fact that his study did not show that there

has been a uniform increase in sedimentation in the River is not significant because he

did not expect to find a uniform increase in sediment because the Corps did not add

sediment uniformly throughout the River. Tr. 5126:1-19, 5140:19-5141:15, 5203:16-

5204:1. He also explained the fact that the gages measuring suspended sediment load did

109
not show sediment increases is not inconsistent with his findings because the gages are

located fairly far apart and are not located near SWH sites where sediment was added to

the River. Tr. 5204:19-5206:1. He also explained that the nature of the sediment

introduced to the River for the purpose of creating SWH would not be reflected in

suspended sediment loads, because the SWH sediment is primarily composed of “heavier

materials” that remain in the River for a period of time. Tr. 5206:2-8. He acknowledged

that the amount of new sediment deposited by the Corps through these SWH projects is

small relative to the total amount of sediment in the River, but he explained that the

volume of sediment from the Corps’ River Changes is not insignificant and that it is the

concentrated delivery and the composition of the sediment from SWH construction that

are “much more critical.” Tr. 5146:14-5147:23, 5206:18-5207:14. See also PX2013. He

noted that “the concentration, delivery and composition of the sediment is much more

critical. And what the evidence shows, and in particularly from Mussetter’s own data, is

this is heavier sediment, 75 percent sand being introduced over a short time period at

point sources.” Tr. 5207:4-9. The court finds that these explanations were supported and

credible, and thus the court rejects the government’s objections to Dr. Hromadka’s

sedimentation study.

Dr. Hromadka also performed a groundwater study and seepage study to assess the

impact of a higher River on seepage and on blocked drainage. Tr. 5208:23-5210:14;

5219:9-5221:24. Dr. Hromadka explained that “the [R]iver normally acts as a sink” and

that groundwater generally flows down into the River. Tr. 5210:8-18. He further

explained that in order to remove surface runoff from rainfall on properties, drainage

110
systems are necessary in cases where a levee blocks natural drainage. Tr. 5210:19-25.

He testified that culverts, with screw gates or flap gates attached to the side, are cut under

or through the levee to allow for water to drain off the properties. Tr. 5210:22-5211:10.

When the River is too high, the culverts close off so that water from the higher River

does not flood up to the properties. Tr. 5211:5-18. As a result, surface water from

rainfall on the properties cannot drain off the properties and water remains on the land.

Tr. 5211:5-5212:13. Dr. Hromadka catalogued the testimony of the plaintiffs

complaining that their drainage gates are “blocked more often and for longer duration by

high water in the [R]iver” and are “blocked at lower flow levels than before” the Corps’

actions. Tr. 5212:5-9, 5213:11-12. In these circumstances, the plaintiffs are

experiencing blocked drainage flooding. Tr. 5168:17-21, 5212:10-13. In addition,

because the groundwater will also rise when the River is higher, the plaintiffs also

experience seepage flooding. Tr. 5223:7-5224:2.

Dr. Hromadka explained that the seepage on the plaintiffs’ properties could not be

explained by rainfall alone, but instead was consistent with the River running higher.56

Tr. 5223:12-5224:23. Relying on aerial photographs, groundwater gage data, and

precipitation records, Dr. Hromadka disputed the government’s contention, based on Dr.

Kopania’s testimony, that “groundwater effects abated as soon as the river levels

56
As discussed infra with regard to individual properties, in his review of satellite imagery of the
plaintiffs’ properties, Mr. Woodbury acknowledged that in many instances, blocked drainage
was apparent, and he opined that in such instances, the blocked drainage was likely caused by
rain and a higher River. Mr. Woodbury also acknowledged that seepage also occurred in some
of these instances of blocked drainage. See infra, Individual Plaintiffs section of this opinion.

111
dropped.” Tr. 5225:2-12. Dr. Hromadka explained that Dr. Kopania, the government’s

groundwater expert, did not consider the groundwater multiplier effect and the

groundwater memory effect. Tr. 5225:13-25. Dr. Hromadka explained that because of

these effects, seepage does not drop quickly, which explains why the plaintiffs claimed

that seepage lasted on their properties for days and weeks. Tr. 5226:1-21.

Dr. Hromadka also prepared his own causation analysis for each property using

the actual and “but for” WSEs prepared by Dr. Christensen. Tr. 5233:5-18. As part of

the analysis, he explained that he undertook a “[c]orrelation analysis.” Tr. 5233:19-

5234:14. He testified that he examined the primary variables at issue for each flooding

event: WSEs, rainfall, prior inundation events, antecedent moisture conditions,

groundwater modeling results, and sediment deposition. Id. He looked at the outcomes

for each of the types of flooding at issue: seepage and/or blocked drainage flooding,

overbank flooding, and levee overtopping flooding. Tr. 5234:5-14. He concluded that

the River changed after 2004 and that the flooding in question would not have occurred

or would have been significantly less severe in scale and/or duration “but for” the Corps’

System and River Changes.57 Tr. 5234:15-5235:2. He explained that the significant

57
Dr. Hromadka testified that for the period in question, there was no evidence that natural
sediment aggradation could explain the higher WSEs. Tr. 5126:1-23. He also dismissed the
possibility that floodplain development could explain the rising WSEs. Tr. 5484:15-16. He
further testified with regard to precipitation that there was no evidence that regional precipitation
had significantly changed since 2004. Tr. 5484:20-5485:6. This was confirmed by government
records which showed the highest runoff events were before 2004 with only two after.
Specifically they occurred in 1975, 1978, 1986, 1993, 1995, 1996, 1997, 2010, and 2011. PX832
at 18. Finally, he testified that tributary inflows alone could not account for the change in WSEs.
Tr. 5485:19-22.

112
quantities of sediment added to the River by the Corps led to geomorphological changes

that decreased the River’s flood-carrying capacity, velocity and depth in certain areas,

and increased hydraulic resistance. Tr. 5126:20-5127:14, 5155:14-5156:3, 5235:3-15.

The Corps’ River Changes thus caused the River to rise faster and higher more often and

for longer periods of time than it did prior to 2004. Tr. 5234:15-5235:6. He further

explained that the Corps’ System and River Changes together have thus caused higher

WSEs, which in turn have “caused in whole or in part increased groundwater levels,

blocked drainage, and seepage on the [plaintiffs’] properties.” Tr. 5235:21-25. He

conceded that “weather-related events contributed to cause the flooding in question,” but

he testified that those events alone could not explain the increased frequency, severity,

and duration of flooding. Tr. 5236:1-6. He concluded that the flooding caused by the

Corps’ System and River Changes was also a foreseeable consequence of the Corps’

System and River Changes to comply with the 2003 BiOp. Tr. 5236:7-11. See also Tr.

5193:8-17, 5199:4-23. Put another way, his testimony confirmed that higher WSEs and

the attendant flooding were the direct, natural, and probable result of the Corp’s System

and River Changes.

The court finds that Dr. Hromadka’s opinions are consistent with and confirm the

opinions of Dr. Christensen and establish that the Corps’ System and River Changes

caused a rise in WSEs, which in turn has resulted in flooding on some plaintiffs’

properties that would not have occurred had the Corps not taken these actions, and that

this flooding caused by higher WSEs was a foreseeable consequence of the Corps’

actions.

113
 The court has considered the testimony from Corps representatives to the effect

that they have been very careful to plan and design their activities to avoid potential

flooding impacts and that they have studies to show that before taking certain actions,

such as chute construction, they try to minimize any flooding harms. Tr. 8171:16-21,

8173:10-8176:24 (Remus), 9060:14-9063:5 (Chapman), 9216:13-9217:1, 9228:17-

9237:20, 9241:18-9248:8, 9261:8-21 (Pridal), 9496:23-9506:10, 9538:8-9540:23

(Bitner), 10872:16-10873:1 (Woodbury). See also PX514 (“Our chute projects are

designed to not impact flood control project[s] by either water surface changes or

velocity concentrations.”). There are other Corps studies that show there are flooding

concerns with the construction of chutes. See, e.g., DX0286; DX0576; DX1072. The

court does not question the Corps’ efforts to minimize flooding in constructing and

maintaining SWH and ESH. The fact that the Corps did not want to cause flooding and

may have taken actions in an effort to mitigate potential flooding when creating SWH

and ESH does not mean, however, that higher WSEs have not resulted or that this result

was not a natural, direct, and probable consequence of the Corps’ actions. The rising

WSEs described by Dr. Hromadka and Dr. Christensen are the result of known processes

that change the hydrology and hydraulics of a river. When the Corps took combined

actions to make the River shallower and slower, rising WSEs were a natural, direct, and

probable consequence of the Corps’ actions. The River Changes were designed to keep

the River from functioning as the deep and fast-flowing River that the BSNP structures

were designed to create and maintain. The court does not doubt that the Corps has tried

to minimize the flooding impacts of its actions. The fact that the Corps took actions to

114
minimize flooding impacts only confirms that flooding impacts are foreseeable and need

to be minimized. The court finds that the Corps’ witness testimony, along with the

exhibits presented regarding the Corps’ intentions, do not undermine Dr. Christensen’s

and Dr. Hromadka’s opinions that, by its actions, the Corps has caused foreseeable water

surface level increases and thus more flooding than would have occurred without the

Corps’ System and River Changes. The evidence established that the changes to the

River along its banks that were designed by the Corps to slow velocity by changing

depths and adding more roughness to the River increased WSEs at higher flows by

essentially slowing down the water in the River that in the past had flowed more quickly

through the channel. The extent to which these elevated WSEs flooded individual

plaintiff’s properties is discussed in the Individual Plaintiffs section of this opinion.

In addition, the court has carefully considered the government’s testimony that the

reason WSEs have risen may be solely attributable to levee construction, as suggested by

Corps witnesses and Dr. Mussetter. Tr. 8642:4-19, 8659:4-18, 8734:2-12, 8742:21-

8744:3 (Shumate), 10631:9-10631:14 (Mussetter). The court does not question that

levees can constrict flow in the floodplain during high flow events and that this

constriction can also lead to higher WSEs. The government did not, however, present

any data to show what impact any increase in levee construction post-2004 has had on

WSEs. The government did not present any studies to support its contention that changes

to the levees that have existed since before the Corps introduced its System and River

Changes are the reason for higher WSEs during periods of high flows on the River.

Without any quantitative evidence to show how WSEs have changed based on the limited

115
improvements made to the levees during the flood years in question, the court has no

basis for finding that the higher River WSEs post-2004 are solely attributable to limited

levee improvements made after 2004.

In addition to carefully considering the testimony of Corps witnesses, the court has

also carefully considered the opinion testimony offered by the government from Dr.

Mussetter and Mr. Woodbury,58 who did their own modeling studies and challenged the

opinions of both Dr. Hromadka and Dr. Christensen. For the reasons set forth below, the

court finds that the opinions of Dr. Mussetter and Mr. Woodbury, two of government

experts, do not undermine Dr. Christensen’s or Dr. Hromadka’s opinions regarding

causation and foreseeability with regard to the System and River Changes causing higher

WSEs and attendant flooding.

Dr. Robert Mussetter, Ph.D., P.E., has 35 years of experience in fluvial

geomorphology and river engineering. Tr. 9863:5-9866:13. He received his B.S. in civil

engineering from Montana State University in 1976, an M.S. in Civil Engineering with a

focus on hydraulics from Colorado State University in 1982, and a Ph.D. in Civil

Engineering from Colorado State University in 1989. Tr. 9864:10-25. He is a registered

Professional Engineer licensed in ten states and is a member of various professional

societies, including the American Society of Civil Engineers and the American Academy

of Water Resources Engineers. Tr. 9865:1-14.

58
The court addresses Dr. Kopania’s opinion testimony and the issue of seepage in the section of
the opinion addressing Mr. Tofani’s opinion testimony.

116
 Dr. Mussetter was retained by the government to: (1) analyze whether the Corps

“change[d] the physical characteristics and behavior of the Missouri River” and (2) if so,

“the likely effects of those [C]hanges . . . on the flooding and the erosion at the

[p]laintiffs’ properties.” Tr. 9874:5-23. In answering these questions, Dr. Mussetter

prepared a one-dimensional sediment transport model using HEC-RAS for an

approximately 413-mile reach of the River and a two-dimensional hydrodynamic model

of “six specific locations” that contain multiple SWH projects. Tr. 9874:24-9881:10,

9882:2-9894:8, 10042:16-10045:25. His goal, he explained, was to isolate the precise

effects of the Corps’ new Master Manual and SWH construction from the “multitude” of

other factors that also affect River hydrology and hydraulics. Tr. 9882:9-9884:17,

10042:16-10043:9. In preparing his models, he relied primarily on hydrology records

from the USGS and the simulated flows prepared by Mr. Woodbury. Tr. 9894:9-

9896:17. He used Corps surveys for his bathymetric data. Tr. 9938:17-22, 9961:17-

9962:16.

Dr. Mussetter concluded that “the Master Manual revision and the SWH

[construction] activities had an insignificant effect on the alleged flooding” and there is

“no basis for the [p]laintiffs’ claims that the physical changes to the [R]iver due to the

flow changes associated with the [Master Manual revision and] the shallow-water habitat

construction are responsible for the alleged flooding.” Tr. 9900:5-9901:18. See also Tr.

9897:14-24. He opined that the amount of sediment from SWH construction is small

compared to the amount of sediment from other inputs and that there is no basis for

plaintiffs to claim that SWH construction is responsible for the plaintiffs’’ flooding

117
claims. Tr. 9966:2-9968:1, 9973:24-9974:8, 10017:3-17, 10019:16-20, 10021:14-

10022:21, 10024:2-18, 10058:6-10070:2, 10112:8-14, 10354:11-22.

Based on the data he reviewed, he explained that bed elevations and WSEs for in-

bank flows have both been largely stable at low flows. Tr. 9946:25-9947:6, 9951:12-23,

9955:21-9956:11, 9958:21-9960:22, 9961:12-24; DX3014-30; DX3014-31; DX3014-36;

DX3014-37; DX3014-42; DX3014-43; DX3014-49 (bed elevations); DX3014-50

(WSEs). Dr. Mussetter explained that his one-dimensional model shows that SWH-

related effects on hydraulics and sediment dynamics are “basically insignificant” and that

SWH construction increases the River’s flood-carrying capacity. Tr. 10353:14-10354:16.

While he acknowledged that some small aggradation occurred near the entrances of some

chutes, he determined that this aggradation had a “negligible effect” on bed elevations

and WSEs at low flows.59 Tr. 10099:19-10103:9, 10151:20-10152:12, 10175:1-21,

10194:24-10195:22, 10224:7-18; 10354:11-16.

59
Dr. Mussetter and Corps witnesses testified that after the dams were constructed, sediment was
trapped by the reservoirs and the amount of sediment in the River drastically decreased. Tr.
9549:12-9550:23, 9555:12-9556:19 (Bitner), 9907:18-9908:13 (Mussetter). See also DX1142.
BSNP structures also trapped sediment through accretion around the revetments and notches.
Bitner 1/27/16 Rule 30(b)(6) deposition at 21:7-12, 138:4-8. According to Dr. Mussetter, the
River bed degrades and aggrades depending on whether there are high flows or low flows
(droughts). Tr. 9956:6-18. Dr. Mussetter explained that during high flows in 2010 and 2011, for
example, the River bed dropped but has now aggraded. Tr. 9951:15-25. Dr. Mussetter also
testified that WSEs have been on the increase since the 1960s, which he attributes to levees and
the BSNP structures. Tr. 9897:25-9898:20, 9952:3-9953:21. There is no dispute from the
plaintiffs that the River was altered with the construction of the BSNP structures and levees.
Rather, the plaintiffs contend that it is the modification and removal of those BSNP structures, in
combination with the System releases, that are now changing the River and causing WSEs to
rise. At closing arguments, in response to the court’s questions, the government conceded that
the BSNP structures, which the government contends were constructed primarily to create a self-
scouring navigation channel, also serve an important flood control function by ensuring a faster,
smoother channel to carry flood waters down the River. Tr. 14246:4-14247:3 (Petrie).
118
 Through his two-dimensional modeling of six locations, Dr. Mussetter opined that

he was able to isolate the effects of the individual SWH features at the limited number of

sites studied from other factors. He concluded that the dike and bank notches he

examined have an insignificant effect on WSEs and make “virtually” no change in

velocity. Tr. 10088:8-10089:6, 10092:11-14, 10103:10-24, 10199:19-10200:17,

10203:12-10219:5, 10224:19-10225:11, 10258:17-10259:14, 10262:6-10267:2. He

opined that “the revetment [chute] and the bank notches [he examined] cause an

insignificant impact on the sediment balance through the [River] and . . . cause[] no

adverse impact on the water surface elevations.” Tr. 10199:19-10200:17, 10203:12-

10208:15, 10225:7-11, 10232:4-13. He concluded that any increased sediment in the

River is offset by the increased conveyance of water through the chutes and other SWH

projects. Tr. 10354:2-10355:16. See also Tr. 10175:1-9, 10224:13-10225:11, 10227:25-

10228:8, 10232:4-25. He also testified that he did not find any erosion “directly”

attributable to SWH-related dike notching or other SWH projects on any plaintiffs’

property.60 Tr. 9900:10-20, 10039:6-10040:6.

The plaintiffs identified numerous flaws in Dr. Mussetter’s studies, which the

court concludes make Dr. Mussetter’s opinions unreliable. First, Dr. Mussetter did not

attempt to examine the cumulative and combined impacts of the thousands of dike

notches and numerous other changes that the Corps has made to the River to comply with

60
The claims for erosion are addressed in the Individual Plaintiffs section of the opinion.
119
the 2003 BiOp.61 Tr. 10381:18-10385:10. Accordingly, his opinions do not directly

challenge Dr. Hromadka’s or Dr. Christensen’s opinions, which are based on their

examination of the cumulative and combined impacts to the River from the Corps’

System and River Changes.62 Second, with regard to the models Dr. Mussetter created,

the court agrees with plaintiffs that many of Dr. Mussetter’s assumptions in constructing

his models were not supported, and thus his models based on those assumptions are not

correct. For example, Dr. Mussetter’s sediment analysis assumes that the sediment

introduced to the River by the Corps’ actions is made up primarily of fine particles that

wash downstream rather than sand, which is courser, heavier, and stays in the River

closer to where it is deposited. Tr. 9998:11-17, 10004:18-23, 10033:19-10035:5,

10036:13-10037:19. Dr. Hromadka explained that Dr. Mussetter’s assumption that the

sediment that the Corps introduced into the River was 70 percent fine particles and only

thirty percent course particles is not factually correct. Tr. 5356:13-5358:4. As Dr.

61
For example, in response to the question of “[d]id you model the cumulative impacts of
all emergent sandbar habitat projects, all shallow-water habitat projects and all
modifications to BSNP structures that the Corps undertook post-2004 in compliance with
the 2003 Amended Bi-OP”, Dr. Mussetter responded “I can’t answer your question.” Tr.
10383:2-7.
62
Like Dr. Mussetter, the Corps witnesses also acknowledged that they have not studied the
cumulative effects of their SWH projects and new Master Manual changes on the River as a
whole. Tr. 9442:24-9444:12 (Pridal), 8313:21-8316:4 (Remus). The government presented
testimony to show that it has collected some hydrographic, flow, velocity, and sediment data
regarding some dike notching and has concluded that the River shows little change from its
SWH program. Tr. 9338:4-9341:4 (Pridal); DX1041; DX1045. The court has read those
documents, which were written in 2007 and 2008. Those studies involve only certain portions of
the River and do not purport to provide a comprehensive study of the cumulative effects. The
government also presented testimony to explain that the Corps has monitored individual off-
channel projects to ensure that chutes are developing properly. Tr. 9350:18-9352:20 (Pridal);
DX1060.

120
Hromadka explained, Dr. Mussetter had his assumptions in reverse. PX2033-B. Dr.

Hromadka’s opinion was confirmed by government witnesses who testified that the

sediment introduced into the River in constructing SWH was mostly sand. Tr. 8297:3-

8300:24 (Remus); Shumate 11/10/15 30(b)(6) deposition (PX917) at 61:18-62:1. See

also Tr. 2413:6-2415:3, 2421:24-2423:7 (Jacobson, USGS); PX36. For example, a Corps

document states that 35 million of the estimated 40 million tons, or 87.5 percent, of the

sediment from SWH projects will be sand. Tr. 5360:12-20; PX36. Dr. Hromadka also

explained that Dr. Mussetter “[s]ignificantly and systematically underestimate[d] the

bedload sediment resulting from [the Corps’] projects[,] i.e., the amount of new sediment

deposited on the [R]iver bottom[.]” Tr. 5361:24-5362:5. Dr. Hromadka explained that

by underestimating the amount of sand in the sediment and by underestimating the

amount of bedload sediment, Dr. Mussetter necessarily underestimated the hydraulic

resistance. Id.

The plaintiffs also identified serious problems with Dr. Mussetter’s HEC-RAS

model. Dr. Hromadka explained that Dr. Mussetter’s HEC-RAS model of the River was

full of uncertainty given the many thousands of inputs or parameters that Dr. Mussetter

needed to specify in order to make his HEC-RAS model run. Tr. 5389:14-5392:9,

5396:23-5397:22. Each of these parameters had to be altered through a calibration

process, which Dr. Hromadka testified made the use of HEC-RAS “unsuitable” for the

purposes employed by Dr. Mussetter in this case. Tr. 5389:25-5390:11, 5392:21-

5394:25. Dr. Hromadka explained that Dr. Mussetter’s model was too complex to be

properly calibrated, emphasizing that “[c]omplex models do not necessarily produce

121
more accurate results” and “adding modeling complexity does not necessarily improve

accuracy.” Tr. 5395:13-5397:17. Dr. Hromadka explained that as the number of

parameters and adjustments increases, the more likely it is that the model can be

manipulated to reach a pre-determined conclusion. Tr. 5389:14-5390:11, 5392:21-

5394:25, 5396:23-5397:22. Dr. Hromadka also noted that Dr. Mussetter and Mr.

Woodbury did not calibrate their models the same way and thus used different

adjustments to get their respective HEC-RAS models to match measured real-world

WSEs. Tr. 5393:16-20. See also Tr. 4826:16-20 (Christensen).

On cross-examination, Dr. Mussetter conceded that his limited one-dimensional

HEC-RAS model exhibited uncertainty with every parameter. Tr. 10437:11-10438:15,

10512:15-10515:21, 10612:9-10613:12. He testified that he had altered the parameters in

the models that he received from Mr. Woodbury, but he could not identify the precise

changes he made to the initial models provided to him by Mr. Woodbury. Tr. 10427:2-

10430:23, 10474:3-10493:6, 10556:11-10558:8, 10610:2-10612:6. He also conceded that

although an accurate HEC-RAS model would require the modeler to include all hydraulic

structures, he did not explicitly include any of the BSNP structures or any of the

modifications to those structures in his HEC-RAS model. Tr. 10534:7-10536:8,

10460:23-10461:21. Dr. Hromadka explained that a complex model was not needed

because of the available data from the Corps and USGS regarding historic WSEs and the

gage measurements of post-2004 WSE changes. Tr. 5489:18-5493:21. Rather, the gage

analysis Dr. Christensen created, and upon which Dr. Hromadka relied, was sufficient to

formulate “but for” comparisons without the use of HEC-RAS modeling. Id.

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 The court finds Dr. Hromadka’s criticisms of Dr. Mussetter’s modeling

persuasive. Given Dr. Mussetter’s concessions and Dr. Hromadka’s criticisms of Dr.

Mussetter’s models, the court concludes that Dr. Mussetter’s models are not reliable.63

For this reason, and because Dr. Mussetter did not consider the cumulative and combined

impacts of the numerous changes the Corps has made to the River, the court finds that Dr.

Mussetter’s opinions do not undermine either Dr. Christensen’s or Dr. Hromadka’s

causation and foreseeability opinions. For the reasons that follow, the court also finds

that Mr. Woodbury’s opinions do not undermine either Dr. Christensen’s or Dr.

Hromadka’s opinions.

Mr. Mark Woodbury, M.S., is a hydrologist with over 25 years of experience in

modeling river hydraulics and reservoir operations. Tr. 10738:11-10752:16. He received

a B.S. in Civil Engineering from Texas A&M in 1988 and an M.S. in Civil and

Environmental Engineering from Utah State University in 1996. Tr. 10738:18-10739:2.

He has done hydraulic analyses, including river simulations for projects in Ethiopia,

Sudan, and Turkey. Tr. 10739:11-10752:16. He was retained by the government to

address the causes of flooding, including the impact of any changes in the Corps’

reservoir management and the impact of any changes in the Corps’ SWH efforts, and to

quantify those impacts. Tr. 10752:18-10754:12, 10760:21-24. In order to determine

WSEs Mr. Woodbury developed a reservoir model using HEC-ResSim (a variant of the

63
As noted, Dr. Hromadka is a highly regarded expert and holds degrees and teaching positions
directly related to hydraulic and hydrological modeling. His opinions on the problems with Dr.
Mussetter’s modeling and his support for Dr. Christensen’s approach carried great weight.

123
HEC-RAS program) to simulate reservoir releases. Tr. 10770:8-10777:4, 10814:3-

10824:23, 10847:10-10851:12 (reservoir model). He then took the results from the

reservoir model and used them in his hydraulic model which also included his modeling

of River channel changes, together with inputs from Dr. Mussetter. Tr. 10777:6-10782:8,

10854:10-10855:14, 10962:1-10968:20 (hydraulic model).64 He also compared his

models with the plaintiffs’ takings claims.65 Tr. 10782:18-10783:20, 10969:1-8,

10989:16-11001:11.

To prepare his HEC-RAS models, Mr. Woodbury reviewed weather conditions,

calibrated the models to represent actual conditions, and then analyzed different scenarios

for reservoir operations and River geometry. Tr. 10755:10-21, 10781:22-10782:5,

10787:18-10790:13, 11024:3-11036:20. He then compared the results of the actual and

hypothetical scenarios to assess the impacts of the Corps’ actions on flooding. Tr.

10822:5-19, 10831:23-10832:8, 10836:19-10848:9. With regard to changes in the new

Master Manual, he modeled the Spring Pulse that the Corps did not implement, a variable

navigation season, increased winter releases, and unbalancing of the reservoirs. Tr.

10822:5-19, 10831:22-1832:8, 10836:19-10848:9. With regard to adaptive management,

he modeled two changes: implementing the Spring Pulse and unbalancing of the

reservoirs. Tr. 11147:21-11149:11, 11504:23-11505:11, 11535:18-20. He did not model

64
Mr. Woodbury did not model all of the River Changes analyzed by Dr. Christensen and Dr.
Hromadka in formulating their opinions.
65
As noted above, Mr. Woodbury used satellite imagery to confirm the periods of flooding
described by the plaintiffs and determined that virtually all of the flooding complained of by the
plaintiffs in fact occurred as the plaintiffs had stated. Tr. 10782:18-22.
124
the actual T&E releases. Tr. 10837:9-11, 11458:4-8, 11535:3-12. He only modeled

changes to the River from chute construction and channel widening, based on examined

bathymetric data. Tr. 10865:6-10873:1 (chutes), 10873:4-10876:16 (channel widening).

Mr. Woodbury did not include any modeling of any dike notching or revetment notching

in his HEC-RAS models, nor did he explicitly include any ESH. Tr. 10883:19-10884:22,

11589:15-11598:11 (notching), 11554:7-11555:18 (ESH). Additionally, he did not

model the effects of chutes on levee failures or on scouring along the toes of levees, nor

did he model the cumulative effects from other SWH features interacting with channel

widening. Tr. 11556:12-11557:4, 11567:16-19, 11573:13-19. His model also did not

account for the effects from channel widening on the reintroduction of sediment to the

River and from the slower River allowing for sediment to deposit. Tr. 11569:1-15. In

fact, Mr. Woodbury testified that under his model, chutes and channel widening could

only reduce WSEs. Tr. 11566:23-11568:3, 11578:5-11579:12, 11589:1-14.

Mr. Woodbury testified that based on his HEC-RAS modeling, he had concluded

that “precipitation, snowmelt and consequent runoff into streams, rivers and reservoirs

were the fundamental cause[s] of the flooding along the Missouri River” from 2006 to

2014, and that flooding similar to that identified by plaintiffs would have occurred

regardless of the Corps’ changes that he modeled. Tr. 10782:23-10783:4, 10784:4-

10785:8. He opined that the Corps’ “[c]hanges to the operational policies of the Corps

for its mainstem [S]ystem of reservoirs [have] been minor and [have] not increase[d]

flood levels and flood peaks” and that “[i]n the context of the BSNP and other changes to

the [R]iver, channel modifications for the purpose of establishing shallow-water habitat .

125
. . have been minor and have not substantially changed the . . . flood-carrying capacity of

the [R]iver.” Tr. 10784:10-20. He further opined that “these changes did not cause

uniformly increased water surface elevations in the [R]iver that would result in increased

flooding of land outside of the [R]iver channel.” Tr. 10784:21-24.

The plaintiffs challenged Mr. Woodbury’s modeling on numerous grounds. First,

plaintiffs challenged Mr. Woodbury’s conclusion that precipitation, snowmelt, and

consequent runoff were the fundamental causes of flooding from 2007 to 2014. Mr.

Woodbury conceded that he is not a meteorologist and is not qualified to give opinions

on weather. Tr. 11404:22-11405:1, 11417:1-9. He also conceded that he is not a

licensed hydrologist, nor is he a licensed professional engineer, and is therefore not

qualified to give opinions as to the cause of any changes to WSEs. Tr. 11403:23-

11406:10. In this connection, plaintiffs noted that the government called several

meteorologists to testify, including Dr. Martin Hoerling, Ph.D., and Dr. Robert Webb,

Ph.D.,66 both of whom testified that they were not prepared to opine on the causes of the

flooding in this case and could not represent that precipitation patterns had significantly

changed since 2004. Tr. 12983:12-12984:12 (Webb), 13553:14-13555:20, 13571:3-6

(Hoerling). Dr. Hoerling testified that over the last 46 years, seven of the top ten highest

66
Dr. Martin Hoerling received his Ph.D. in Meteorology from the University of Wisconsin at
Madison in 1987. Tr. 13517:14-17. He is a research meteorologist in the Physical Sciences
Division of the NOAA Earth System Research Laboratory in Boulder, Colorado. Tr. 13517:6-
19. Dr. Webb, Ph.D., received his A.B. in Earth Sciences from Dartmouth College in 1981, his
M.S. in Geological Sciences from Brown University in 1985, and his Ph.D. in Geological
Sciences from Brown University in 1990. Tr. 12958:17-23. Dr. Webb is the director of the
Physical Sciences Division of the NOAA Earth System Research Laboratory in Boulder,
Colorado. Tr. 12957:15-20.
126
Basin runoff years occurred between 1970 and 1997, and only two of the top ten years

have occurred since 1997. Tr. 13560:5-23, 13561:10-13; PX832 at 18-9. Indeed, Mr.

Woodbury testified that he was not aware of any tributary inflows that Dr. Christensen

had not taken into account in preparing his model. Tr. 11413:13-11414:15. Also,

contrary to the government’s contentions, with regard to the role of precipitation and

flooding, it was clear from the testimony that Dr. Hromadka had in fact considered local

rainfall when he offered his opinions on causation for the individual properties he

examined, concluding that the monthly precipitation totals he studied could not alone

explain the level of flooding or all of the incidents of flooding. Tr. 5484:4-5485:6,

5485:15-5488:25.

Second, with respect to Mr. Woodbury’s modeling specifically, plaintiffs contend

that Mr. Woodbury’s failure to consider T&E releases undermines the reliability of his

modeling. The court agrees with the plaintiffs. For example, Mr. Woodbury did not

consider whether T&E releases would have been made in a “but for” world when there

was downstream flooding. Tr. 11458:4-8, 11149:13-21, 11535:3-12.

Third, plaintiffs also contend that Mr. Woodbury’s decision to create his own

models and to not use the Corps’ pre-litigation HEC-RAS models to which he had access

made his models suspect. Tr. 11539:6-21, 11542:5-11546:15, 11551:23-11553:15. The

court agrees that Mr. Woodbury’s decision to make his own models was not explained.

Fourth, the court accepts Dr. Hromadka’s opinion that with over 6,000 parameters

that Mr. Woodbury had to fine tune, the court cannot be certain that Mr. Woodbury’s

models were not manipulated to achieve a desired result. Tr. 5373:7-5377:13, 5389:14-

127
5397:22. For example, Mr. Woodbury made seasonal adjustments that were illogical in

order to calibrate his models. Specifically, he made seasonal changes in some portions of

the River but not in others for the same period of time to get his models to match

measured data. Tr. 11643:12-11646:9. He also made adjustments to local flows that

defied reality. Tr. 11647:9-11653:21. For example, he set local flows from Rulo to St.

Joe to “zero” for May 31, 2008 to June 20, 2008, which he conceded was “not possible.”

Tr. 11650:19-11652:13.

For all of these reasons, the court finds that Mr. Woodbury’s modeling is not

reliable and does not undermine Dr. Christensen’s and Dr. Hromadka’s opinions

regarding why and how the Corps’ actions led to higher WSEs for the years in question

that would not have occurred “but for” the Corps’ System and River Changes.

Importantly, however, in rejecting the government’s criticisms of Dr.

Christensen’s and Dr. Hromadka’s opinions, the court has not altered its view that

plaintiffs failed to prove causation regarding System Changes in connection with the

2011 flood. As discussed above, the court has determined the Corps’ System Changes

did not cause the 2011 flood. In this connection and as discussed infra in the Individual

Plaintiffs section, the plaintiffs, having presented a theory of liability that is based on the

court accepting that the cumulative and combined effects of the Corps’ System and River

Changes caused foreseeable flooding that would not have occurred in a “but for” world,

only presented evidence of higher WSEs that were based on System and River Changes

combined together. PX2025-A. Dr. Hromadka’s WSE charts upon which the court has

based its conclusions only present WSE comparisons with and without the impacts of the

128
combined System and River Changes. Because the court was not presented with

evidence for each individual plaintiff regarding WSE comparisons based on River

Changes and System Changes separately, the court is not able to evaluate how River

Changes alone affected WSEs for the 2011 flood. Therefore, except for plaintiffs’

contentions regarding flooding in 2011 based on the Lower Hamburg Chute causing the

Middle L-575 levee breach and the 2010 flood causing the scouring that led to the Upper

L-575 levee breach, the court will not consider River Changes alone as a foreseeable

cause of the 2011 flood.

c. Mr. Tofani

In addition to Dr. Christensen and Dr. Hromadka, the plaintiffs also relied on the

opinion testimony of Mr. Glenn Tofani to support their claims relating to levee failures.

There were five levee failures in 2007, three in 2008, fourteen in 2010, and thirty-nine in

2011. PX2577 (2007); PX2576 (2008); PX2575 (2010); PX2574 (2011). In addition,

numerous plaintiffs have complained of blocked drainage and seepage leaving water on

their properties when the River runs high. Mr. Tofani was retained by the plaintiffs to

determine whether “but for” the Corps’ System and River Changes, the levees would

have failed or blocked drainage and seepage would have occurred.

Mr. Glenn Tofani, P.E., G.E., has over 30 years of experience in the fields of

geotechnical, civil, and environmental engineering. Tr. 5779:22-5786:7; PX2500. He

received a B.S. in Civil Engineering from California State University at Long Beach in

1982 and an M.S. in Civil Engineering from California State University in Long Beach in

1983, where he specialized in Geotechnical Engineering. Tr. 5779:22-5780:3; PX2500.

129
He is a registered Geotechnical Engineer in California and a registered Civil Engineer in

Alabama (Inactive), Arizona, Colorado, Illinois, Missouri, Nevada, New Mexico, New

York (Inactive), Texas, and Utah (Inactive). Tr. 5780:4-11; PX2500. He has provided

contracting and geotechnical engineering services for the construction of more than 5,000

structures, including pipelines, roads, flood control improvements, levees, and

embankments. Tr. 5780:12-20; PX2500.

He has experience investigating and evaluating the causes of flood damage for the

state of California and multiple cities, counties, and private parties. Tr. 5780:21-5781:5;

PX2500. He also evaluated levee and embankment designs in California while employed

by the Corps as a Project Engineer between 1983 and 1984. Tr. 5781:6-11, 5784:1-11;

PX2500. He has been designated as an expert on civil engineering on more than 500

occasions. Tr. 5781:22-5782:3; PX2500. From 1986 to 1992, he taught at California

State University at Long Beach and was a lecturer from 2003 to 2011 at the University of

California at Irvine. Tr. 5785:3-11; PX2500. At present, he is the president and principal

engineer for Advanced Construction Technologies and the president of GeoKinetics, a

geotechnical engineering firm. Tr. 5785:12-21; PX2500. He also owns a construction

company. Tr. 5785:22-5786:2; PX2500.

Mr. Tofani was asked by plaintiffs to evaluate the nature, extent, and causes of the

levee failures that flooded many of the plaintiffs’ properties between 2007 and 2011 and

was asked to respond to the opinions of the government’s experts regarding those same

130
issues. Tr. 5786:8-16. He was also asked to evaluate the plaintiffs’ seepage and blocked

drainage claims.67 Tr. 5779:11-14.

In conducting his evaluation of the levee failures, Mr. Tofani reviewed the

operative complaint for the litigation. Tr. 5786:17-20. He also reviewed and evaluated

the available documentation regarding the construction, maintenance, and performance of

the levees, including: geotechnical investigation records; construction records; as-built

plans; monitoring and maintenance records; Corps Project Information Reports; and

Corps Levee Operation and Maintenance Manuals and Guidelines. Tr. 5786:21-5787:14.

In addition, he retrieved, reviewed, and evaluated historic aerial photographs of the

portions of the River at issue, including aerial maps from Google; photographs from

Pictrometry; photographs from U.S. National Imagery and Mapping Agency taken by

several government agencies, including the United States Department of Agriculture

(“USDA”) and USGS; and photographs from other photograph collections. Tr. 5787:15-

5788:1. He also retrieved, reviewed, and evaluated videos and photographs of the levee

failures taken by news agencies, Corps personnel, plaintiffs, and local residents. Tr.

5788:2-6.

Mr. Tofani explained that he reviewed the deposition testimony of the plaintiffs

and interviewed several of them in person and over the telephone. Tr. 5788:7-19,

5809:12-20. He also reviewed the depositions of the following Corps employees: Bryan

67
Before offering his opinions, the government asked that Mr. Tofani be qualified as an expert in
geotechnical engineering and that his expert opinions be limited to the causes of the levee
failures. Tr. 5848:19-5852:25.
131
Flere, Omaha District, Levee Safety Program Manager; Don Moses, Omaha District,

Civil Engineer; Kim Thomas, Omaha District, Chief of Emergency Management;

Geoffrey Henggeler, Kansas City District, Levee Safety Program Manager; and Eugene

Kneuvean, Kansas City District, Chief Emergency Management. Tr. 5788:20-5789:5.

Mr. Tofani testified that he also retrieved, reviewed, and evaluated the USDA soil maps

for each levee failure location. Tr. 5789:7-5792:14; PX2508–PX2512.

To analyze the questions he was asked to answer, he testified that he prepared a

base map of the study area with the information he collected, which included 86 miles of

SWH mitigation areas on an approximately 350-mile long section of the River. Tr.

5792:15-5793:9; PX2513. He also inspected, took photos, and collected soil samples at

nine levee failure locations and had an associate collect soil samples at three additional

levee failure locations. Tr. 5806:6-5807:2; PX2518–PX2530. Mr. Tofani tested those

soil samples. Tr. 5808:20-5809:11. He reviewed and evaluated the WSEs provided by

Dr. Christensen for 2007 through 2011, along with the modifications he needed to make

to determine the water levels at the precise levee breach locations. PX2553; PX2554. He

retrieved, reviewed, and evaluated the WSEs measured at several gaging stations along

the River by the National Weather Service from 2004 to 2016. Tr. 5813:16-5814:2;

PX2534. He also retrieved, reviewed, and evaluated USGS topographic data and LIDAR

data for the study area.68 Tr. 5814:9-5819:17; PX2535–PX2550. He testified that using

the data he compiled, he prepared two summary tables detailing the dates, locations, and

68
See fn. 30.

132
WSEs in the actual and “but for” worlds for the levee failures. PX2553 (2011); PX2554

(2007, 2008, and 2010).

Set forth below is the court’s analysis of Mr. Tofani’s opinions and the

government’s criticism of those opinions. As the court has previously explained, for the

year 2011 the court will only review plaintiffs’ claims regarding the L-575 levee.

Regarding all of the other levee failures, because the court has determined that the 2011

System releases were not part of the “single purpose” to comply with the ESA

obligations, plaintiffs have failed to prove causation. The L-575 levee failure, the

plaintiffs claim, was directly attributable to the construction of a chute and it is for that

reason that the court will address this levee failure in 2011. Thereafter, the court turns to

the levee failures for the other years.

i) Levee Failures in 2011

Based on his analysis, Mr. Tofani testified that the L-575 levee (Middle and

Upper) breaches in 2011 occurred because of piping, which he explained meant that

“seepage water got into the permeable sand layer that underlies the levee, pressurized that

layer to the point where it was boiling up and washing out the foundation of the levee

from underneath it and the levee literally collapsed or fell in on itself” at both locations.

Tr. 5827:5-21, 5858:3-10. See also PX2578, PX2579. In contrast, the other 2011 levee

failures were caused by overtopping related to the high WSEs. Tr. 5830:11-15, 5854:22-

5855:9, 5940:1-5941:24, 6046:17-24; PX2553; PX2696. He explained that overtopping

of a levee occurs “when water flows over the top of a levee for a sufficient period of time

to cause erosion and eventually a breach of the levee.” Tr. 5940:25-5941:5. He

133
explained that if the River “rises to a level where it overtops a levee, failure of that levee

is likely, though not certain.” Tr. 5854:25-5855:4. He further explained that if the levee

is overtopped for a period of days by water that “rises to a level that is significantly above

the levee, the chances are very slim that [the] levee is going to survive[.]” Tr. 5855:5-9.

Mr. Tofani testified that a chute constructed by the Corps called the Lower

Hamburg Chute contributed to the Middle L-575 levee failure. Tr. 5859:24-5915:7,

6045:12-6046:9. The Upper L-575 levee failure, he testified, was caused by seepage

related to the high water levels in 2011. Tr. 5916:10-5925:5. He opined that neither the

Middle L-575 levee failure nor the Upper L-575 levee failure would have occurred “but

for” the Corps’ River Changes. Tr. 6044:24-6045:7.

With regard to the Middle L-575 levee failure, which occurred on June 13, 2011 at

river mile 551, Mr. Tofani explained that the Lower Hamburg Chute was a contributing

factor to “[s]ignificant scouring along the toe of the levee[,]” which he testified caused

“[t]he piping failures and levee breach.” Tr. 5859:24-5860:2, 5891:18-22, 5892:3-24;

5894:5-5895:3, 5897:2-5, 5900:14-17, 5901:6-9, 5905:24-5907:8, 5912:13-15. See also

PX2578–PX2671. Mr. Tofani noted that in 2003 and 2004, as part of the Lower

Hamburg Bend Mitigation Project, “the Corps removed the [series of rock] dikes that it

[had previously] constructed in the 1940s [as part of the BSNP] to prevent flow along the

former [pre-existing] secondary channel,” constructed a 75-foot wide pilot chute (the

Lower Hamburg Chute), and constructed a “separate side channel” (the east chute)

“parallel to the levee[.]” Tr. 5819:22-5820:12, 5863:8-5864:22, 5868:11-19, 5869:10-19,

5880:13-15, 5881:8-16. See also PX2580–PX2626. He explained that the following

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conditions caused or contributed to the Middle L-575 levee failure in 2011: (1) “[t]he

geometry of the levee and the floodplain at this location, which is a preexisting

condition[;]” (2) “[t]he construction and subsequent widening of the Lower Hamburg

Chute which brought the [R]iver closer to the levee and caused higher flow velocities,

scouring, and higher seepage pressures, beneath and along the levee, [which is] a changed

condition or new [R]iver management policy condition[;]” and (3) “the higher [R]iver

water levels associated with the new [River management] policy operating parameters,

which is also a changed condition.” Tr. 5914:19-5915:7. See also Tr. 5884:2-4,

5884:20-5885:6, 5892:13-5893:2 (quoting Moses). He opined that “the combination of

the [Lower Hamburg Chute] and the higher water levels . . . caused the scouring” and that

“the levee would not have failed but for the scouring that occurred along the toe of the

levee.” Tr. 5901:6-9; 5905:24-5907:8, 5912:13-16; PX2661–PX2667; PX2671. He also

repeated the testimony of several plaintiffs who indicated that the Lower Hamburg Chute

caused a perpendicular flow directly at the levee and that this flow also contributed to the

Middle L-575 levee breach. Tr. 5885:24-5888:22.

The government took issue with Mr. Tofani’s opinion that the Lower Hamburg

Chute contributed to the scouring that caused the Middle L-575 levee breach. It was not

disputed that the scour hole was the cause of the Middle L-575 levee failure. Tr. 6123:6-

6124:13, 6162:3-7. The government’s witness, Dr. Schaefer, disputed Mr. Tofani’s

testimony regarding the effect of the Lower Hamburg Chute on the Middle L-575 levee

breach. For the reasons discussed below, the court finds Dr. Schaefer’s testimony

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persuasive and finds that the plaintiffs did not establish that the Lower Hamburg Chute

was a contributing factor in causing the Middle L-575 levee breach.

Dr. Jeffrey Schaefer, Ph.D., P.E., P.G., has 28 years of experience in the design,

construction, and analysis of levees, dams, and geotechnical structures. Tr. 12206:25-

12207:6. He received his B.S. in Civil Engineering from the University of Louisville in

1987, his Masters in Civil Engineering from the University of Louisville in 1988, and his

Ph.D. in Civil Engineering, with a focus on Geotechnical Engineering and Geology, from

the University of Kentucky in 2000. Tr. 12206:6-16. He is both a Professional Engineer

and Professional Geologist and has worked on numerous levee studies. Tr. 12210:13-16,

12211:13-12212:21, 12427:19-12429:16. He is a member of several professional

societies, including the American Society of Civil Engineers, the American Society of

State Dam Safety Officials, and the United States Society on Dams. Tr. 12207:7-12. He

has authored approximately 60 technical presentations and technical papers, including a

paper he presented in 2017 to the American Society of Civil Engineers on “Assessing the

Implications of Sand Boils for Backward Erosion Piping Risk.” Tr. 12206:17-22. He is

currently employed by the Corps as the lead civil engineer of the Corps Institute for

Water Resources Risk Management Center, where he works on risk analysis, risk

assessment, and risk management involving the Corps’ dams and levees. Tr. 12207:13-

12209:1, 12426:18-12427:18.

Dr. Schaefer was asked by the government to evaluate: (1) whether the “changes

in the operation of the [R]iver by the Corps increase[d] seepage flooding of the

[p]laintiffs’ properties; increase[d] flooding from levee failures on the [p]laintiffs’

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properties; and increase[d] erosion of [p]laintiffs’ properties[;]” and (2) whether the

“construction of shallow-water habitat projects by the Corps increase[d] seepage flooding

[of the] [p]laintiffs’ properties; increase[d] flooding from levee failures on [the]

[p]laintiffs’ properties; and increase[d] erosion of [the] [p]laintiffs’ properties.” Tr.

12212:25-12213:12. In preparing his models to study levee breaches and to evaluate

seepage, Dr. Schaefer testified that he collected available background information; visited

several breach sites; evaluated aerial photographs, Google Earth images, historic maps,

topographical maps, and LIDAR data; reviewed geological studies and soil studies;

evaluated construction and design information, levee manuals, construction drawings,

levee performance and flood damage project information reports, flood after-action

reports, Corps expert reports, Corps depositions, and videos and photographs of the

floods and flood damages; reviewed seepage studies from the Corps; reviewed hydraulic

data, hydrographs, and two-dimensional hydraulic models from Mr. Woodbury, Dr.

Mussetter, and the Corps; and developed seepage models. Tr. 12213:13-12218:19,

12245:11-12246:1, 12340:11-12.

With regard to the Middle L-575 levee breach in particular, Dr. Schaefer testified

that he prepared a seepage model to study the Middle L-575 levee breach with and

without the Lower Hamburg Chute in place, with and without the scour hole in place, and

with and without the relief wells in place.69 Tr. 12354:22-12355:2. See also DX3018-

69
There was a great deal of testimony regarding the relief wells. Relief wells are wells designed
to relieve water pressure on levees by keeping water from seeping underneath the levee. The
court finds that the Corps had given the levee as a whole a “minimally acceptable” rating and
had given the relief wells an “unacceptable” rating. Tr. 5907:2-5908:4 (Tofani). The court finds
137
264; DX3018-333. Dr. Schaefer opined that the 2011 Middle L-575 levee breach was

caused by a piping failure precipitated by the “severe erosion of the [R]iver side silt layer

at the toe of the levee” caused by the formation of a scour hole, which, he testified, would

have occurred regardless of the Lower Hamburg Chute’s construction. Tr. 12220:8-18,

12364:19-24. He concluded that “the levee failed from seepage that was caused by scour

hole erosion on the river side of the levee; the seepage from the chute had no impact on

the failure; and the levee would have failed with or without the chute due to the river side

erosion.” Tr. 12364:19-24. See also DX3018-293; DX3018-295. Dr. Schaefer testified

that the 2011 Middle L-575 levee failure occurred due to the high magnitude and duration

of the 2011 flood, the levee’s kink point forming an angle that contributed to erosion, and

the poor performance of relief wells. Tr. 12391:25-12392:18. Dr. Schaefer testified that

the Lower Hamburg Chute did not have any influence on the scour hole because the

water that caused the scouring did not come from the chute, which was 1,500 feet from

the levee breach, but “was present along the levee in 2011 due to the fact that the [R]iver

level [in 2011] rose above the floodplain and flooded the entire floodplain.” Tr. 12367:5-

12370:13; DX3018-304–DX3018-306. He discounted eyewitness testimony that water

from the chute began to run perpendicularly to the levee at the breach location, testifying

that the eyewitness testimony was better explained as water running through the breach

as soon as it occurred. Tr. 12372:20-12381:10; DX3018-309–DX3018-316. Dr.

that relief wells were not fully functioning and thus were a contributing factor to the Middle L-
575 levee breach. DX0883; DX0884; DX3017-91.

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Schaefer concluded that the “primary factors that contributed to the [Middle L-575] levee

failure are: [t]he large flows and long durations of the flows associated with the 2011

flood[;] [t]he alignment of the levee [which] created a location of high velocity flow that

would have existed [whether or not] the Lower Hamburg Chute was present[;] [t]he

geomorphic features, remnant channels, passing below the levee which likely resulted in

a thin surface blanket layer of low permeability soils underlain by high permeability

soils[;] [t]he fine uniform sands and silts found along the [R]iver that are very erodible[;]

[the] [e]rosion of the silt blanket layer along the riverside toe[;] [a]nd [the] reduced . . .

relief well capacity/functionality due to the lack of maintenance and testing by the local

levee district.” Tr. 12391:25-12392:18. The court finds that Dr. Schaefer’s testimony

better explained how the Middle L-575 levee breach occurred and that, for the reasons he

stated, the court finds that the Lower Hamburg Chute was not a contributing cause of the

Middle L-575 levee breach and thus plaintiffs have not established causation for the

Middle L-575 levee breach.

Mr. Tofani also testified regarding the Upper L-575 levee breach, which occurred

on June 29, 2011 at river mile 571.5. Tr. 5916:10-12, 5919:16-18, 5922:7-5925:7. See

also PX2672–PX2695. There is no chute in the vicinity of the levee. He testified that the

scouring damage along the toe of the levee caused by “the high water levels and flow

velocities during the 2010 flow event” had not been fully fixed prior to the 2011 flood,

and this contributed to the Upper L-575 levee failure. Tr. 5917:4-16, 5921:7-5922:1.

Mr. Tofani explained that the Upper L-575 levee failure was caused by: (1) “the

geometry of the levee and the floodplain at this location, which is preexisting or a status

139
quo variable [;]” and (2) “the higher flood levels and flow velocities in 2010 and 2011

with the new [River management] policy that caused scouring and piping.” Tr. 5924:25-

5925:5. He testified that under the Corps’ old River management policy, i.e., without the

Corps’ System and River Changes, the water levels would have been sufficiently lower

and that “the levee was not likely to fail even if scour was present.” Tr. 5923:13-5924:1;

PX2687–PX2695. He also testified that “without the scouring along the levee toe, the

levee was not likely to fail at either the old or new [R]iver management water levels.”

Tr. 5924:3-24; PX2687–PX2695.

The government again presented testimony from Dr. Schaefer challenging Mr.

Tofani’s opinions regarding the Upper L-575 breach. Dr. Schaefer concluded that the

Upper L-575 breach was caused by a piping failure due to severe erosion that was caused

by the magnitude and duration of the 2011 flood. Tr. 12397:8-12398:22. He explained

that a scour hole had formed after the 2010 flood that was not fully repaired by the time

of the 2011 flood. Tr. 12396:8-14, 12397:6-24; DX3018-345. Dr. Schaefer opined that

“the primary factors that contributed to the [U]pper L-575 levee breach are the large

flows and long duration of the flows associated with the 2011 flood; the alignment of the

levee[;]the kink point, that created a location of high velocity flow; the erosion of the

clay/silt cap along the river side toe[,] both historically in previous years and during the

2011 flood; [the] geomorphic features, remnant channels, passing below the levee which

likely resulted in a thin blanket compared to other areas; and the fine uniform sand and

silts found along the [R]iver [that] are very erodible.” Tr. 12397:25-12398:11. The court

finds that Dr. Schaefer’s opinion regarding the causes for the Upper L-575 breach are

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persuasive. The court agrees with Dr. Schaefer that the prior scouring from the 2010

flood was not by itself a cause of the levee failure in 2011. Rather, the 2011 releases were

so overwhelming that levee failure was inevitable. Having concluded that the plaintiffs

did not establish that the Corps’ System Changes in 2011 were the cause of the 2011

flood, the court finds that the Upper L-575 breach was not caused by the Corps.

ii) Levee Overtopping in 2007, 2008, and 2010

In 2007, 2008 and 2010, Mr. Tofani opined that some flooding was due to levee

overtopping on some properties, but that the levees did not fail. PX2554. Mr. Tofani

opined that the levee overtopping would not have occurred without the higher WSEs,

which he understood from Dr. Christensen’s data was caused by the Corp’s System and

River Changes. Tr. 6046: 17-21. He also opined that most of the levee failures in 2008

and 2010 would not have occurred without the higher WSEs, which he understood from

Dr. Christensen’s data was caused by the Corps’ System and River Changes. Tr.

5941:20-24; PX2554, PX2888–PX2898 (2008); PX2849–PX2887 (2010). In support of

his opinions regarding the causes of the levee failures, Mr. Tofani had the benefit of the

studies noted above and the Corps’ studies, which in many instances confirmed the cause

of the levee failures.70 Tr. 3966:11-3973:12 (Henggeler). He testified that he studied

70
As explained supra, Mr. Tofani reviewed and evaluated the available documentation regarding
the construction, maintenance, and performance of the levees, including: geotechnical
investigation records; construction records; as-built plains; monitoring and maintenance records;
Corps PIRs; Corps Levee Operations and Maintenance Manuals and Guidelines; photographs of
the portions of the River at issue, including aerial maps from Google,; photographs from
Pictrometry; photographs from U.S. National Imagery and Mapping Agency taken by several
government agencies, including USDA and USGS; photographs from other photograph
collections; and videos and photographs of the levee failures taken by news agencies, Corps
personnel, plaintiffs, and local residents. Tr. 5786:21-5787:14, 5788:2-6.
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each levee failure and in most instances, the testimony of the plaintiffs and Corps’

documents confirmed that overtopping was the cause.71

The government’s expert, Dr. Schaefer, did not provide any analysis regarding his

opinions as to the cause of the levee breaches that occurred in 2007, 2008, and 2010. Tr.

12404:23-12406:6, 12531:2-12532:16, 12548:3-12549:8, 12550:3-12553:5; DX3018-

363–DX3018-368. Dr. Schaefer offered the following opinions regarding the levee

failures based largely on Mr. Woodbury’s modeling: (1) “[n]one of the documented

breaches occurred adjacent to any shallow-water chute projects; therefore, none of those

breaches were caused by [the] shallow-water habit projects” implemented by the Corps;

(2) “[r]egardless of the cause, overtopping or failure prior to overtopping, the hydraulic

modeling by [Mr. Woodbury] shows the [R]iver levels under the old policy . . . and the

71
The 2008 and 2010 overtopping failures of the L&H Investments private levee were confirmed
by Mr. Henry Larson (Tr. 2736:8-2738:3, 3628:20-3634:8 (Larson), 5988:23-5989:16 (Tofani));
2010 overtopping failure of the Ideker private levee was confirmed by Mr. Roger Ideker and
photographs from the Holt County Clerk, Ms. Kathy Holstine. Tr. 4138:13-4141:12 (Ideker),
5981:7-5982:4 (Tofani); 2007 and 2010 overtopping failures of the Union Township non-federal
levee were confirmed by Mr. Darwin Binder, Mr. Steven Cunningham, Mr. Eddie Drewes, Mr.
Eugene Kneuvean, and a county document (Tr. 3320:7-3325:5, 3335:19-3336:3 (Drewes),
3384:16-3385:3, 3401:13-19 (Cunningham), 3528:16-24 (Binder), 5983:5-5984:9 (Tofani);
PX2867–PX2871; 2007 and 2010 overtopping breaches of the Holt County Number 10 non-
federal levee were confirmed by Mr. Steven Cunningham, Mr. Kneuvean, and Mr. Henggeler
and Corps documents (Tr. 3379:7-33380:1 (Cunningham), 5985:4-20, 5992:22-5993:3 (Tofani);
PX2875; PX2909; PX2910); 2007 and 2010 overtopping failure of the Alma Green Trust private
levee were confirmed by Mr. Marvin Green (Tr. 2938:19-2940:13 (Green), 5986:10-11,
5993:19-5994:9 (Tofani)); 2008 and 2010 overtopping failures of the Rushville-Sugar Lake non-
federal levee were confirmed by Mr. Lanny Frakes (Tr. 3874:9-22, 3877:4-11 (Frakes), 5987:14-
24, 5989:17-5990:12 (Tofani)); 2007, 2008, and 2010 overtopping failures of the Hildebrandt
private levee were confirmed by Ms. Patricia Hildebrandt (Tr. 3690:10-3691:16 (Hildebrandt),
5990:13-25, 5994:23-24 (Tofani)). While overtopping may have been the cause of levee
failures, this does not mean, as discussed infra, see fn. 72, that some of these levees would not
have also overtopped without the Corps’ System and River Changes. See, PX2554.

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new policy . . . would have been almost identical[;]” (3) “[t]he actual water elevations

were not the result of changes to the new policy but were the result of exceptional

snowmelt and/or precipitation events[;]” and (4) “[g]iven that the loading from the

[R]iver would be the same under the two scenarios, it is expected that there would be no

difference in the number of levee failures that would occur.” Tr. 12411:5-24. He also

testified that Mr. Tofani did not have sufficient information to determine the precise

cause of the breaches, and thus his opinions are too speculative. Tr.12404:23-12406:14.

The court disagrees with the government regarding the levee breaches in 2007,

2008, and 2010. The court finds that Mr. Tofani’s opinions regarding overtopping and

levee failure in those years were supported. Mr. Tofani explained that overtopping can

cause failure and there was no other evidence presented by the government to show that

there were other causes of levee failures. Thus, where Mr. Tofani opined that WSEs

without the Corps’ System and River Changes would not have been sufficiently high to

overtop and/or breach the levees as compared to the higher WSEs caused by the Corps’

System and River Changes, the plaintiffs have established causation. They have also

established foreseeability in that levee overtopping and where a breach occurred was the

direct, natural, and probable result of the higher WSEs.72

iii) Blocked Drainage/Seepage

72
As discussed in the Individual Plaintiffs section of the opinion, Mr. Tofani did not agree that
every levee overtopping in 2007, 2008, and 2010 was attributable to the Corp’ System and River
Changes. Specifically, he determined that the Holt County #10 levee would have failed in 2007
and that the Union Township levee would have possibly failed in 2007 and would have failed in
2010. PX2554.

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 Mr. Tofani was also asked to provide his opinions regarding whether the Corps’

System and River Changes caused seepage and blocked drainage. Tr. 5779:11-14,

5997:6-8. He testified that there are two primary mechanisms that could have increased

the seepage associated with higher groundwater levels: (1) “higher [R]iver water levels,

particularly during the spring and summer months[;]” and (2) “structural or

geomorphological changes to the [R]iver associated with the shallow-water habitat or

river control structure modifications.” Tr. 5997:6-20. Mr. Tofani also testified regarding

the USGS’ 1999 study entitled Effects on Ground-Water Levels in the Missouri River

Alluvial Aquifer Caused by Changes in Missouri River Stage, Fremont and Monona

Counties, Iowa. Tr. 5997:21-6000:22; PX2917; PX2918. He explained that the 1999

study describes the potential impact to groundwater levels from changes in the River

WSEs that were contemplated at that time to meet the Corps’ ESA obligations. Tr.

5998:6-11. The USGS performed the study in two locations in Iowa that are covered by

this litigation. Tr. 5998:12-5999:9; PX2919. The USGS installed and monitored 36

groundwater wells to evaluate how groundwater levels would be affected by various

River stages. Tr. 5999:10-13. He noted that the approach taken by the USGS in the 1999

study to simulate River stages for multiple contemplated reservoir release and storage

scenarios is similar to the approach taken by Dr. Christensen in his WSE analysis. Tr.

5999:14-18. The 1999 study noted that plans to increase System releases could cause

groundwater levels to rise with impacts of one to four feet in groundwater level changes.

Tr. 5999:19-6000:22. The 1999 study also showed that the impacts on groundwater

levels can occur up to 10,000 feet away from the River. Tr. 5999:25-6000:16. The 1999

144
study also found that “[c]hanges in the measured groundwater levels in response to the

changing [R]iver levels . . . occur[red] at distances of more than a mile from the [R]iver

in both counties.” Tr. 5999:25-6000:3.

Mr. Tofani also testified about several of the groundwater wells that the

government’s expert, Dr. Kopania, studied. Mr. Tofani explained that Dr. Kopania’s

results “indicated significant impacts to groundwater levels in response to fluctuating

[R]iver levels for each well that he evaluated that was less than 12,000 feet from the

[R]iver[.]” Tr. 6001:6-11. Mr. Tofani further explained that “the amount by which the

groundwater level fluctuated in the three wells that Dr. Kopania looked at” was, on

average, approximately seventy-eight percent of the associated change in the River water

level, as measured by Dr. Kopania, meaning that, for example, if the River water level

rose by ten feet, the groundwater level in the three wells would increase, on average, by

7.8 feet, which Mr. Tofani opined “indicates that groundwater levels are closely tied to

[R]iver water levels.” Tr. 6001:12-6002:4. See also Tr. 6013:13-19; PX2920–PX2945.

Mr. Tofani opined that the Corps’ System and River Changes “will result in higher

groundwater levels to the extent [the Changes] create higher [R]iver water levels[.]” Tr.

6019:14-17.

Mr. Tofani also examined and offered an opinion on the effect of SWH projects on

groundwater levels. Tr. 6016:25-6020:1. He stated that SWH projects “effectively bring

the [R]iver closer to the farmlands” and “[a]t moderate and high [R]iver levels, the

shallow-water habitats will typically cause groundwater levels to be higher within

approximately two miles of the [R]iver.” Tr. 6019:19-6020:1; PX2950. See also Tr.

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5997:6-20. Mr. Geoffrey Henggeler, a Corps witness, supported Mr. Tofani’s opinions

regarding groundwater and seepage. Tr. 12000:15-12001:25, 12002:4-12011:6

(Worthwine Island study), 12012:19-12015:8. Mr. Tofani testified that modeling

groundwater effects is very difficult because of the limited data available, and thus it was

appropriate to “compare the frequency of flooding at any given [R]iver discharge level

before and after the shallow-water habitat and the [R]iver structural changes were

implemented” for the study area in order to determine if the River water levels have been

raised sufficiently by the Corps’ System and River Changes to cause groundwater levels

to rise. Tr. 6020:2-6, 6021:10-23. After looking at the increased number of claims, Mr.

Tofani opined that the increase in claims “appears to be at least partially attributable to

structural changes to the [R]iver that have occurred, either directly or indirectly, as a

result of the [Corps’] shallow-water habitat measures.” Tr. 6027:10-14. The court takes

from Mr. Tofani’s use of the language “appears to be at least partially attributable” that

he could not definitively state that any single SWH project near any individual plaintiff’s

property caused higher groundwater levels.

The government relied on the testimony of Dr. Andrew Kopania to respond to Mr.

Tofani’s seepage analysis. Dr. Andrew Kopania, D.Env., P.G., is a hydrogeologist with

27 years of experience in modeling and evaluating surface water and groundwater

conditions. Tr. 12773:17-12774:2; DX2084. He received his B.S. from the University of

California at Los Angeles (“UCLA”) in 1981, an M.S. in Geology from the University of

Michigan in 1984, and a Doctorate in Environmental Science and Engineering from

UCLA in 1991. Tr. 12774:4-14; DX2084. He is a certified Hydrologist licensed in

146
California and a Professional Geologist licensed in California. Tr. 12773:23-12774:2;

DX2084. He is a member of the Association of Groundwater Scientists and Engineers.

DX2084. He is currently the president and principal hydrologist of EMKO

Environmental, Inc., in El Dorado Hills, California. Tr. 12775:8-12; DX2084. He

specializes in complex groundwater-surface water interactions. Tr. 12773:17-22,

12775:8-12; DX2084. He has experience studying the interaction of surface water and

groundwater for the Nevada Irrigation District and at other locations. Tr. 12775:18-

12776:24; DX2084. Dr. Kopania explained that he was asked by the government to

evaluate: (1) “whether the Corps’ actions caused the claimed flooding for the 2007 to

2014 seepage claims, which occurred at 22 of the 44 representative sites[;]” (2)

“groundwater exfiltration,” (where groundwater is rising up to the surface) which

occurred at 8 of the 22 representative sites with seepage claims, and which he defined as

“seepage flooding claim[s] or allegations of seepage flooding where the water level in the

[R]iver [did not] rise to the toe of a levee or [did not] leave the bank of the [R]iver[;]” (3)

“the response of the groundwater table to those changes in the [R]iver level while the

[R]iver is still within [its] banks[;] and (4) “changes to the groundwater levels from the

construction of [Missouri River Restoration Program] projects, such as the shallow-water

habitats or chutes.” Tr. 12778:17-12779:22. See also DX3019-15. He also compared

the “effects before and after the Master Manual revisions and due to Missouri River

Restoration Program actions such as the shallow-water habitat [projects].” Tr. 12777:21-

24. He apparently was not asked and did not study plaintiffs’ blocked drainage claims.

Tr. 12894:15-12898:16.

147
 Dr. Kopania testified with regard to seepage that, based on the best data he could

find from the USGS regarding four well sites, “groundwater is [always] higher than the

[R]iver except when the [R]iver is above its banks.” Tr. 12788:4-18, 12810:2-16,

12825:21-12826:1. See also DX3019-57–DX3019-75. He found that “[t]he changes in

the groundwater elevation are always less than the change[s] in the [R]iver level,” and

that at distances greater than two miles, the River is “not the primary influence” on

groundwater elevations. Tr. 12826:2-9. Based on Mr. Woodbury’s modeling, Dr.

Kopania opined that “[R]iver levels, flooding events and groundwater elevations are not

higher under the [new Master Manual].” Tr. 12830:21-12832:7, 12832:13-16, 12833:4-

12835:7, 12891:25-12892:10. He opined, based on his review of Mr. Woodbury’s and

Dr. Mussetter’s modelings, that “any changes to the [R]iver level due to changes in the

[R]iver configurations and operations are nominal and that the differences in peak flood

[R]iver levels are not consistently higher under the [new Master Manual] and MRRP

actions.” Tr. 12833:22-12834:3. See also Tr. 12835:5-12836:25. Dr. Kopania testified

that “there are multiple causes of flooding related to the exfiltration events.” Tr.

12851:3-5, 12852:23-12853:11, 12873:13-12874:13. He determined that while the River

level could cause the groundwater table to rise, local rainfall and runoff from upslope

areas can cause the groundwater table to rise in exfiltration conditions. Tr. 12801:8-13,

12852:23-12853:11, 12873:13-12874:13. Based on his review of River levels from Mr.

Woodbury, Dr. Kopania opined that the changes in River levels “are not solely or

primarily responsible for the rise of the groundwater table and the occurrence of

exfiltration onto the ground surface[.]” Tr. 12789:15-21, 12873:10-24.

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 With regard to SWH projects and their impacts on groundwater levels, Dr.

Kopania was tasked with studying whether SWH projects affected groundwater levels or

led to a higher groundwater table. Tr. 12779:13-16, 12826:11-15. He relied upon a

USGS study that examined the groundwater impacts of different chutes from 1994 to

2002. Tr. 12837:4-12841:9. See also DX1229. Dr. Kopania opined that so long as the

water level in chutes is lower than the River level, chutes would not cause the

groundwater table to rise or cause exfiltration flooding claims. Tr. 12826:22-12830:3.

He explained that the “creation or expansion of the chutes widens the surface area of the

[R]iver and causes the [groundwater] table to decline on the landward side of the levee in

all these exfiltration situations where [the River is in] a gaining stream condition.” Tr.

12874:9-13. Dr. Kopania did not, however, analyze any other types of SWH project

aside from chutes, nor did he analyze the cumulative effects of all of the Corps’ River

Changes. Tr. 12910:23-12912:8.

The plaintiffs contend that Dr. Kopania’s opinions should be discounted because

he did not consider or study whether blocked drainage could explain plaintiffs’ flooding

claims and relied extensively on Mr. Woodbury’s modeling, which, plaintiffs contend

and the court has found, is not reliable. Tr. 12894:15-12898:16, 12882:24-12885:4,

12890:25-12894:24.

The court has considered Dr. Kopania’s testimony and finds that it does not

undermine Mr. Tofani’s opinions regarding causation and foreseeability with regard to

blocked drainage when WSEs are higher than they would have been before the Corps’

System and River Changes. As discussed infra, the court has not found liability for any

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seepage claims that are separate from blocked drainage, and thus the court finds that Dr.

Kopania’s opinions regarding groundwater seepage do not undermine Mr. Tofani’s

opinion that when higher River levels cause blocked drainage, there is also likely

seepage.73

The government also relied on the testimony of Dr. Schaefer to respond to Mr.

Tofani’s seepage analysis with regard to seepage when the River is flooding and is at or

above the toe of the levee. Tr. 12232:18-12233:6; DX3018-34. Dr. Schaefer compiled

the available background information for each of the properties with seepage claims;

visited the sites; examined the soil survey mapping, geological studies, and

geomorphological information; evaluated the hydrographs produced by Mr. Woodbury;

and developed seepage models for certain properties. Tr. 12215:19-12217:9, 12244:19-

12246:5. For the properties for which he did not specifically develop seepage modeling,

he extrapolated those model results to those properties that had similar characteristics and

performed a “qualitative assessment . . . by comparing similar conditions.” Id. He used a

steady-state seepage analysis, where the boundary conditions are held constant, unlike

plaintiffs’ expert who used a transient seepage analysis. Tr.12237:5-12241:5, 12242:11-

23. He testified regarding his seepage analysis of each individual property and produced

a summary chart. See DX3018-40; DX3018-41; DX3018-240–DX3018-246. Dr.

73
Having concluded that higher WSEs in 2007, 2008, 2010, 2013, and 2014 were caused by the
Corps’ System and River Changes, the court has not considered whether individual SWH
projects have by themselves caused additional seepage. The court accepts the plaintiffs’ theory
that this case concerns the cumulative and combined impacts of the Corps’ System and River
Changes, and except for the plaintiffs’ claims regarding the Lower Hamburg Chute contributing
to the Middle L-575 levee breach, the court has not examined any individual Corps project.
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Schaefer offered the following opinions regarding seepage: (1) “the quantity of seepage

flow is directly related to the [R]iver stage[;]” (2) “hydraulic modeling by [Mr.

Woodbury] indicates there are only minor differences in the [R]iver levels simulated

from the baseline/actual condition and the pre-2000/no-MMR scenario[;]” (3) “[t]hese

scenarios account for both operational and [R]iver channel geometry differences[;]” (4)

“the estimated seepage quantity differences are minor and are both positive and

negative[;]” (5) “[t]he shallow-water habitat chutes have not contributed to seepage

flooding on the [p]laintiffs’ properties[;]” (6) “[n]o shallow-water habitat chutes create

the primary seepage entrance for any of the [p]laintiffs’ properties[;]” and (7) “[n]one of

the [p]laintiffs’ properties that are claiming seepage flooding are adjacent to a levee with

a chute near the levee.” Tr. 12218:21-12219:18, 12335:6-12336:4.

The plaintiffs contend that Dr. Schaefer’s opinions should be discounted because

he failed to consider or study whether there was blocked drainage, which could explain

the plaintiffs’ claims. Tr. 12456:10-12460:11. Dr. Schaefer also relied on Mr.

Woodbury’s modeling, which plaintiffs contend is not reliable. Tr. 12441:3-12446:23,

12460:22-12461:24.

As with the opinions of Dr. Kopania, the court finds that Dr. Schaefer’s opinions

do not undermine Mr. Tofani’s conclusions regarding the cause of seepage and blocked

drainage claims on the plaintiffs’ properties. Dr. Schaefer’s opinions regarding causation

rely on Mr. Woodbury’s modeling, which the court has found is unreliable.74 Seepage

74
Plaintiffs Ideker, Blodgett Farms, Larson, and Hildebrandt claim that portions of their
properties have eroded following the Corps’ System and River Changes. As discussed in the
151
and blocked drainage claims in this case are all tied to higher WSEs, which for 2007,

2008, 2010, 2013, and 2014, the court has found were caused by and were the foreseeable

result of the Corps’ System and River Changes. Mr. Tofani’s opinions, which are

consistent with Dr. Hromadka’s, are sufficient to establish causation and foreseeability

with regard to the claims for seepage when associated with blocked drainage.

IV. Individual Plaintiffs

The court’s findings regarding the plaintiffs’ claims are as follows:

1. Property 1: Karen G. Hogue Trust and Peter and Karen Hogue75

This property is located at river mile 1323 and the Hogue plaintiffs claim a taking

based on flooding only in 2011. The undisputed testimony is that flooding began late

May or early June and lasted about 90 days. Virtually the entire property was inundated

by overbank flooding to some extent. Some areas were deeper than others depending on

the elevation. Depths of flood waters varied from one to several feet. The home on the

property was protected by a ring dike that was built but water entered the home through

underground seepage, causing great damage. Some crops were planted but were

Individual Plaintiffs section of this opinion, the court finds that these claims have been
complicated by the significant erosion that occurred in 2011 along the River for which the Corps
is not liable and thus fail for lack of proof. Tr. 8192:11-8194:22 (Remus, discussing Andersen’s
property), 9062:10-9063:15 (Chapman, discussing dike notch erosion); DX3004-199–DX3004-
202 (Andersen’s property).
75
After trial, the government challenged whether the Hogue Trust was the real party in interest
on the grounds that when the property was flooded it was owned by Mrs. Hogue as an individual
and was not transferred into the trust until later. The plaintiffs have moved to have Mrs. Hogue
substituted as the real party in interest or joined on the grounds that plaintiffs mistakenly failed to
include in the complaint Mrs. Hogue in her individual capacity and the government suffered no
prejudice. The court finds pursuant to RCFC 17(a)(3) that Mrs. Hogue is the real party in
interest and will be joined as a party. Plaintiffs’ motion (ECF No. 395) is GRANTED.
152
destroyed by the floodwaters. Flooding caused erosion and left large sand deposits and

debris. With great effort, the sand and debris were removed and the land was reworked,

but not as it was before the flooding. Many trees on the property died. Karen Hogue has

been unable to move back into the house because of air-quality concerns due to mold,

despite many efforts to make it safe. Tr. 151-182.

As discussed earlier in this opinion, the court is mindful of the devastation caused

by the 2011 flood. However, to establish a taking based on that flood the plaintiffs

needed to prove that the flood was caused by the Corps’ System Changes and that the

flooding was foreseeable. Plaintiffs failed to meet their burden to prove a taking and

their claim must be dismissed.

2. Property 2: Peter and Judy Masset

This private residence is located at river mile 1313. Plaintiffs own the property in

fee simple and only make a takings claim for flooding in 2011. The evidence established

that before flooding began in May 2011, the home was sandbagged with a ring

dike/berm, five feet high. Seven pumps outside the home and seven inside the home

were installed to pump water. The overbank flooding encroached upon but did not

overtop the dike/berm for about two and a half months from May until September. Water

infiltrated into the basement with the peak stage coming in June. The water began

receding in August but did not totally recede until September. Plaintiffs slept on the floor

of their bedroom for approximately two months to keep the pumps running (24 hours a

day, seven days a week). As a result, plaintiffs were able to save their home. Damages

included: shifted windows, cracks in the ceiling, cracks in tile flooring, cracks in walls, a

153
cracked driveway, ruined landscaping, a ruined sprinkler system, a ruined lawn, and a

damaged foundation. Tr. 848-881.

For the same reasons as stated with regard to Property 1, Peter and Judy Masset

cannot establish a taking based on the 2011 flood and their claim must be dismissed.

3. Property 3: Eric Moritz; Southport Marina, LLP; Capsco
Entertainment, Inc., d/b/a The Pier Bar and Grill

This property is located at river mile 1313. Mr. Moritz and his companies own

portions of the property in fee simple and lease the rest. Mr. Moritz on his own behalf

and on behalf of his companies only makes a takings claim for the flood in 2011. It is not

disputed that the property was inundated by overbank flooding. Floodwaters ranged from

two feet deep in the restaurant to 15 feet deep in the Marina. The flooding lasted from

Memorial Day until Labor Day. The flooding caused: dock damage in marinas, parking

lot damage due to erosion, loss of income from boat slip rentals and marina use, erosion,

and damage to marina banks. The property had a restaurant and as a result of the

flooding the interior was completely lost and had to be rebuilt. It did not re-open until

2012. Tr. 184-203.

For the same reasons as noted with regard to Property 1, Eric Moritz and his

companies cannot establish a taking based on the 2011 flood and their claim must be

dismissed.

4. Property 4: James and Sharon Forney

This property is located at river mile 1068. The Forneys own the property in fee

simple. They make a takings claim for flooding in 2011. The evidence established that

154
flooding began on May 20, 2011 and lasted approximately 100 days until September 14,

2011. A temporary levee was constructed by the City of Fort Pierre and the Corps just

south of the property. Flood waters reached four to five feet deep on the property. The

main floor of the home had water in it for the first time ever. The flood caused extensive

damage to the home, farm, barn, and stock pens, and tore out several thousand feet of

fencing. Additionally, extensive debris was deposited along the southern end of the farm

up against the temporary levee. Noxious weeds, muck, mud, and silt inundated the farm.

The alfalfa crop that had been planted was completely destroyed. Tr. 347-389.

For the same reasons as discussed with regard to Property 1, James and Sharon

Forney cannot establish a taking based on the 2011 flood and thus their claim must be

dismissed.

5. Property 5: Andersen Family Farms Partnership; Engra
Andersen

This property is located at river mile 771 and is the first property located below

Gavins Point Dam. The property is farmed. A portion of the property is owned in fee

simple and the rest is farmed under a cash rental lease agreement. Plaintiffs claim a

taking based on flooding only in 2011. The evidence established that approximately 100

acres were inundated with an average of two to two and half feet of water due to

overbank flooding and another approximately 100 acres were injured from seepage due to

an elevated groundwater table. Flooding lasted from June to late August. Approximately

200 acres of corn and soy beans were lost as a result of the flooding. In addition there

155
was injury to the property from erosion, scouring, sand deposits, and debris that required

clean-up. Tr. 391-477.

For the same reasons as discussed with regard to Property 1, these plaintiffs cannot

establish a taking based on the 2011 flood and their claim must be dismissed.

6. Property 6: Paul and Debra Dailey

This property is located at river mile 744. The Daileys own the property in fee

simple and make a takings claim only for flooding in 2011. The evidence established that

the overbank flooding began around June 1, 2011 and approximately 80 to 85 percent of

the property was inundated with several feet of water. Floodwater depths varied on the

property from one inch to four feet on the farmland, zero to eight feet on the pasture land,

and 10 to 12 feet near the River bank. Flooding lasted from the first of June to the end of

September. Flooding left sand deposits south of the tree line along the River up to 14 feet

deep. Some areas of the bank were lost to erosion. Approximately 30 percent of the

timber died immediately, with trees continuing to die, reaching approximately 40 to 50

percent. All of the corn and some soy bean crops were destroyed. The plaintiffs were

also forced to sell a herd of approximately 160 cows and calves that had been in the

family for three generations. Tr. 543-564.

For the same reasons as discussed with regard to Property 1, Paul and Debra

Dailey cannot establish a taking based on the 2011 flood and their claim must be

dismissed.

7. Property 7: Andersen Family Farms Partnership; Bryce L.
Andersen

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 This property is located at river mile 721. Portions of the property are owned in

fee simple and other portions are leased. Plaintiffs claim a taking based only for flooding

in 2011. The evidence established that approximately 400 acres were inundated with an

average of one to one and a half feet of water due to overbank flooding and seepage from

an elevated groundwater table. Flooding lasted from late May to late August of 2011.

Approximately 400 acres of corn and soy beans were lost as a result of the flooding. In

addition, there was significant bank degradation and loss of some acreage in between

wing dikes. Approximately five acres were also permanently lost to sand deposits. Tr.

391-477.

This is the area of the River where the Corps began to make River Changes to

comply with the ESA. For purposes of establishing liability for a taking based on the

2011 flood as well as for flooding in all other years, the plaintiffs presented evidence to

show that the System Changes and River Changes together caused additional flooding

that would not have occurred in a “but for” world where those System and River Changes

would not have been made. Specifically, as discussed, the court was presented with Dr.

Hromadka’s opinion testimony and WSE charts for each property, which showed the

difference in WSEs between the actual and “but for” worlds that Dr. Christensen had

modeled and Dr. Hromadka then modified to apply to each plaintiff’s property to

establish causation and foreseeability for each year of flooding. The opinion testimony

presented in all instances for 2011 showed higher WSEs based on combined System and

River Changes. The court does not have sufficient opinion testimony or other evidence

for each property and for each year of flooding that would allow the court to separate the

157
System Changes from the River Changes to determine whether there would have been

increased flooding at each property based on System Changes or River Changes alone for

any of the years of flooding.

In such circumstances, the court finds that plaintiffs cannot establish a taking

based on the 2011 flood downstream of Gavins Point Dam where changes to the River

were made. Even though the court has found that the River Changes by the Corps were a

cause of flooding when combined with the System Changes for purposes of establishing a

taking for other flood years, the 2011 flood is different. The court has determined that

plaintiffs have failed to establish causation for the 2011 System Changes and the court

has no way of determining whether the River Changes alone would have caused more

severe flooding than would have occurred without the River Changes given the

magnitude of the System releases in 2011.

For these reasons and because the court does not have evidence to show based on

WSE level changes that the Corps’ River Changes alone would have caused increased

flooding in the “but for” world, plaintiffs’ takings claim based on flooding in 2011 fails

for lack of proof of causation. Thus, this claim must be dismissed.

8. Property 8: Omaha Tribe of Nebraska

This property is located at river mile 695 and is owned by the Omaha Tribe of

Nebraska (“Tribe”) in fee simple. The Tribe’s takings claim is based only on the 2011

flood. Floodwater on farmland reached eight to eleven feet deep. The overbank flooding

lasted for approximately 90 days from June to August. There was extensive injury to

land (including farmland and crop loss), sand deposits, debris, and scouring. There was

158
also loss of equipment, the casino closed for 18 months, and the fuel plaza and racetrack

were destroyed. Additionally, 100 acres of farmland were lost that can no longer be

farmed. A ring-levee approximately ten feet high was constructed around the casino in

an attempt to protect it. Plaintiff tried to construct a similar ring-levee around the fuel

plaza but could not complete it before the floodwaters arrived. Groundwater entered the

casino ring-levee even though plaintiff ran four to eight pumps 24 hours a day. Tr. 658-

723.

For the reasons discussed with regard to Property 7, the Omaha Tribe of Nebraska

cannot establish a taking based on the 2011 flood and the claim must be dismissed.

9. Property 9: Tob-Isle, Inc.

This property is located at river mile 686. It is owned in fee simple. Plaintiff has

a takings claim based only on the 2011 flood. The property was inundated by overbank

flooding for approximately 100 to 110 days from June to September. Fifteen acres of the

bank were lost due to erosion. The water depth reached approximately eight feet in the

wetlands, three to four feet in the old oxbow lake, and approximately six inches in the

fields. Flooding left large scour holes and sand deposits. Approximately 160 acres of

cropland were flooded. There was a significant loss of land and approximately 1,400

trees died. Tr. 65-150.

For the same reasons as discussed above regarding Property 7, the court finds that

Tob-Isle, Inc. cannot establish a takings claim based on the 2011 flood and the claim

must be dismissed.

10. Property 10: Richard Archer

159
 This property is located at river mile 684. Plaintiff owns a portion of the property

in fee simple and has a crop-sharing agreement for a portion of the property.76 The

plaintiff has a claim for a taking based only on the 2011 flood. During the 2011 flood,

the entire property was inundated by overbank flooding with a current running across the

property. All of the crops were planted and fertilized when the flooding started.

Floodwaters were five and a half to six feet deep over the entire property. Flooding

started in early June and did not start receding until the end of August. Some water

remained on the property until November. Flooding left sand deposits and debris

76
The government argues that plaintiffs, Archer, KMJ Farms, Buffalo Hollow Farms, Salter,
Frakes, and Ettleman, cannot make takings claims based on crop losses associated with property
these plaintiffs do not own but farm under a crop-sharing arrangement. While the government
agrees that these plaintiffs can make takings claims based on flooding on the property they own,
the government contends that the plaintiffs’ takings claims associated with loss of crops under
their crop sharing arrangement should be dismissed on the grounds that these plaintiffs do not
have compensable property interests.
The plaintiffs argue in response that it is well settled that crop losses are cognizable as a takings
claim. In Barnes v. United States and King v. United States the court found that crop losses can
be compensable. Barnes v. United States, 538 F.2d 865 (Ct. Cl. 1976); King v. United States, 427
F.2d 767 (Ct. Cl. 1970)). Plaintiffs assert that crops are personal property and crops are
constitutionally protected. As such they contend, the owners of 50 percent of crops under a crop
sharing arrangement can have their property taken by the government if the government by
flooding property destroys the crops. In Barnes, 538 F.2d at 872, the court stated, “we think
defendant took property from those plaintiffs who are owners of crops alone, measured by the
amount by which the value of their respective interests were diminished as of the date of taking.”
The court agrees that the above-named plaintiffs have a protected property interest in the crops
they grow under their crop-sharing arrangements that can be taken by the government. Whether
they are entitled to compensation for any crop-share loss will be examined in Phase II of this
litigation for those that proceed to that phase. For example, Archer’s claim is for 2011 only and
will be dismissed for failure to prove causation. Nonetheless, the court finds based on the above-
cited precedent that these plaintiffs have standing to pursue takings claims based on the property
interest they hold under their crop-sharing arrangements.

160
requiring clean-up. All of the crops were lost and the center pivot was damaged. Tr.

829-847.

For the same reasons as discussed above regarding Property 7, the court finds that

Richard Archer cannot establish a taking based on the 2011 flood and the claim must be

dismissed.

11. Property 11: Scott and Susan Olson and Randy and Patricia Olson

This property is located adjacent to river mile 680. The property is owned by the

Olsons in fee simple. Plaintiffs based their takings claim on flooding in 2011 and 2014.

In 2011, overbank flooding led to depths of 20 to 25 feet, with most of the

property being under 10 to 12 feet of water. Flooding began at the end of May, crested in

early August, and did not recede until late September/early October. The flood caused

severe injury to the land leaving large scour holes. One scour hole was approximately 40

feet deep, 400 feet wide, and a quarter of a mile long. Extensive sand deposits up to 12

feet deep were left on the property. The entire crop was destroyed. There were extensive

amounts of debris that needed clean-up. Tr. 2579-2711.

For the same reasons as discussed above with regard to Property 7, the court finds

that Scott and Susan Olson and Randy and Patricia Olson cannot establish a taking based

on the 2011 flood.

In 2014, plaintiffs testified that floodwater came in from the north end of the

property, near a notched dike area, starting in late August or early September lasting for

two to three weeks. Plaintiffs claim the flooding covered approximately 60 acres of crop

land. Tr. 2579-2711.

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 The government acknowledges overbank flooding in July 2014, but not in

September. DX3015-255.

The flooding in late August and early September 2014 is not supported by Dr.

Christensen or Dr. Hromadka’s opinion testimony that showed increased WSEs in May

and early June 2014 but not in September 2014. Because plaintiffs’ claim is not

supported by the plaintiffs’ expert testimony, the takings claim based on flooding in 2014

fails for lack of proof of causation.

Because Scott and Susan Olson and Randy and Patricia Olson have not established

causation for the flooding in 2011 or 2014, their takings claim must be dismissed.

12. Property 12: David and Elizabeth Brainard

This property is located at river mile 671. The plaintiffs own the property in fee

simple. They claim a taking only for flooding in 2011. In 2011, flooding started in early

June. The water rose about 25 feet from the inlet of Harbor 671 below the home. Water

came within two feet of the back, or River side, of the home but actually entered from the

front of the home, which has a lower elevation. Plaintiffs had one to six inches of water

in their home. The floodwaters completely inundated the neighborhood and surrounding

area. The flooding lasted approximately 120 days. Tr. 1210-1243.

For the same reasons as discussed above with regard to Property 7, David and

Elizabeth Brainard cannot establish a taking based on flooding in 2011 and their claim

must be dismissed.

13. Property 13: Blodgett Farms, LLC

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 This property is located at river mile 669. The plaintiff owns the property in fee

simple. Blodgett Farms, LLC, claims a taking of its property by overbank flooding in

2010, 2011, 2013, and 2014. The plaintiff acknowledges that a portion of the property is

protected wetlands for which it makes no takings claim. Tr. 1275-1360.

In 2010, flooding at this property began in late June to early July. The lower 54

acres of farmland were inundated by overbank flooding with depths of four to five feet.

Seven acres of the upper piece of the farm also flooded with one to two feet of water.

The water came from the north and the flooding lasted two to three months into

September. The lower 54 acres could not drain because of the high River. Crops were

lost and production was adversely affected.

The government does not deny that overbank flooding occurred on the property

because of higher River levels. DX3015-262. Based on his modeling, which the court

has rejected as unreliable, Mr. Woodbury concluded that the changes he modeled resulted

in more days of flooding than would have occurred without those changes. DX3015-263.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart, that the

flooding in 2010 was the result of higher WSEs. The court finds that the higher WSEs

were caused by and were a foreseeable result of the Corps’ System and River Changes

which resulted in more severe flooding than would have occurred without these Changes.

In 2011, flooding at the property began in the middle of May and inundated the

entire farm. Despite sandbagging around the residence, about four and half inches of

water got into the basement and the residence sustained significant flood damage, as did

the outbuildings. The entire crop was destroyed. The flood left tremendous sand

163
deposits and ridges on the property, some 15 feet deep, and scour holes, one being 35 to

40 feet deep. Plaintiff had to do a lot of restoration work on the farm to get it back to the

point where it could be planted. There was sand, muck, and debris everywhere. It took

until 2013 for all of the scour holes to be filled. Only part of the farm could be planted in

2012. The lower 54 acres have not been able to be farmed since 2011. In addition,

plaintiff lost part of the River bank due to erosion.

For the same reasons as discussed with regard to Property 7, plaintiff cannot

establish a taking based on flooding in 2011.

The court has also considered plaintiff’s takings claim based on erosion that

allegedly occurred in 2011. The court finds that this claim fails for lack of causation and

also for lack of proof. Without evidence of the precise boundaries of the property before

the 2011 flood and evidence of the property’s boundaries after 2011, it is not possible to

determine the amount of property lost to erosion, even if causation had been established.

In 2013, flooding was similar to the flooding in 2010 according to the testimony of

Mrs. Jackson. Flooding began in May and lasted several weeks. Flooding destroyed the

crops that had been planted.

The government does not dispute that overbank flooding occurred due to an

elevated River. Mr. Woodbury contends that local precipitation may have exacerbated

the flooding. DX3015-266. He also noted that high flows in late May and early June on

the Big and Little Sioux Rivers contributed to the flooding. DX3015-227. Based on his

modeling, which the court has rejected as unreliable, Mr. Woodbury concluded that there

164
would have been no change in the days of flooding with or without the changes he

modeled. DX3015-267.

The court has examined the government’s contention that high River flows were

attributable to the Big and Little Sioux Rivers south of Gavins Point and that releases

from Gavins Point during peak flows at the Omaha gage show that releases from Gavins

Point accounted for 30 percent of the flow. In addition, the court understands that only a

portion of the flow from Gavins Point was for T&E species. The court has found that the

Corps’ contribution to flows for the years other than 2011 for T&E releases, together

with the River Changes, led to higher WSEs than would have occurred in the “but for”

world without those Changes. The court has further found that together both the System

and River Changes made for the purpose of benefitting T&E species led to greater

flooding on the Blodgett Farms, LLC property. The court finds, based on Dr.

Hromadka’s testimony and the WSE chart, that the flooding in 2013 was the result of

higher WSEs. The court finds that the higher WSEs were caused by and were a

foreseeable result of the Corps’ System and River Changes which resulted in more severe

flooding than would have occurred without these Changes.77

In 2014 flooding was nearly identical to 2013 with overbank flooding on the lower

54 acres. After 2014, plaintiff can no longer get crop insurance for the lower 54 acres.

77
Mr. Woodbury states that local precipitation exacerbated the flooding. Dr. Hromadka’s WSE
chart indicates that he looked at precipitation for each of the flooding events and at no time did
he see anything extraordinary. Dr. Hromadka did not deny that rainfall contributes to flooding.
Rather he testified that rainfall alone cannot explain the increased flooding that occurred. The
court agrees with Dr. Hromadka.
165
 The government does not dispute that overbank flooding occurred and that it was

caused by elevated levels in the River. The government contends that the flooding may

have been exacerbated by local precipitation. DX3015-268; DX3015-269. Based on his

modeling, which the court has rejected as unreliable, Mr. Woodbury concluded that the

changes he modeled resulted in fewer days of flooding than would have occurred without

those changes. DX3015-269.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart, that the

flooding in 2014 was the result of higher WSEs. The court finds that the higher WSEs

were caused by and were a foreseeable result of the Corps’ System and River Changes

which resulted in more severe flooding than would have occurred without these Changes.

The court has considered the plaintiff’s takings claim based on flooding in 2010,

2013, and 2014 and finds that Blodgett Farms, LLC, has shown that repeated flooding

has interfered with plaintiff’s use and enjoyment of their property and was caused by and

was the foreseeable result of the Corps’ System and River Changes. In the next phase of

the litigation the plaintiff will be allowed to prove the remaining elements of its takings

claim.

14. Property 14: Dennis and Janis Connealy and Quentin and Jill
Connealy

This property is located at river mile 665. Some of the property is owned in fee

simple and the remaining portion is a cash rental with a lease agreement. The plaintiffs’

takings claim is based only on the 2011 flood. The flooding began in late May and lasted

for 100 days until September. Before the flooding started, the land was dry, crops were

166
planted, and the River was extremely low. The floodwaters blocked all drainage ditches,

including those maintained by the local drainage district. All of the crops on the property

were lost. Tr. 2219-2272.

For the same reasons as discussed above with regard to Property 7, plaintiffs

cannot establish a taking based on the 2011 flood and thus their claim must be dismissed.

15. Property 15: Anthony and Mary Salter and Franklin and Cheryl Salter

This property is located at river mile 662. The plaintiffs rent the property that was

flooded. Plaintiffs claim a taking of their property interest based on flooding in 2008,

2010, 2011, 2013, and 2014. Tr. 565-608. In this connection, the court notes that there

are several mitigation projects in the vicinity of plaintiffs’ farm operations, including

Sandy Point built in 2011 and 2013; Tyson Bend built in 2004, 2008, and 2009; and

California Bend built in 1999 with additional work in 2003 and 2004. Def.’s Br., Table

1. In addition, the Corps has notched dikes or allowed them to degrade on the River near

plaintiffs’ farm operations.

In 2008, flooding occurred on the portion of acreage farmed that is known as the

Krejci Farm starting in June and lasting two to four weeks. The flooding resulted in 80

acres of crops being destroyed.

Although Mr. Woodbury’s model does not show any overbank flooding in 2008,

Mr. Woodbury’s satellite images confirm flooding occurred and thus the government

does not dispute that the property flooded.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart, that the

flooding in 2008 was the result of higher WSEs. The court finds that the higher WSEs

167
were caused by and were a foreseeable result of the Corps’ System and River Changes

which resulted in more severe flooding than would have occurred without these Changes.

In 2010, flooding was similar to 2008. Mr. Salter testified that flooding occurred

in June and approximately 80 acres of crops were destroyed.

The government does not dispute that overbank flooding in 2010 was caused by

high flows in the River. DX3015-278. Based on his modeling, which the court has

rejected as unreliable, Mr. Woodbury concluded that the changes he modeled resulted in

more days of flooding than would have occurred without those changes. DX3015-279.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart, that the

flooding in 2010 was the result of higher WSEs. The court finds that the higher WSEs

were caused by and were a foreseeable result of the Corps’ System and River Changes

which resulted in more severe flooding than would have occurred without these Changes.

In 2011, the entire property was inundated with overbank flooding. Flooding

started in late May and lasted for over 100 days through September. Floodwaters reached

12 to 15 feet deep. The entire crop was destroyed and the farm was severely damaged

with vast amounts of sand deposits. Flooding took away top soil and left a quarter-inch

thick crust. Extensive land reclamation efforts were required. A scour hole on the

portion of the farm known as the Graybill Farm was 40 feet deep and two football fields

long and had to be repaired so farming could begin.

For the same reasons as discussed above with regard to Property 7, Anthony and

Mary Salter and Franklin and Cheryl Salter cannot establish a taking based on the 2011

flood.

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 In 2013, the flooding was similar to 2008 and 2010 for both the Krejci and

Graybill farms. Crops were lost and production was adversely affected.

The government does not dispute that overbank flooding in 2013 was caused by higher

flows in the River. DX3015-282. Based on his modeling, which the court has rejected as

unreliable, Mr. Woodbury concluded that there would have been no change in the days of

flooding with or without the changes he modeled. DX3015-283.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart, that the

flooding in 2013 was the result of higher WSEs. The court finds that the higher WSEs

were caused by and were a foreseeable result of the Corps’ System and River Changes

which resulted in more severe flooding than would have occurred without these Changes.

For 2014, plaintiffs again claim that the property flooded similar to 2008, 2010,

and 2013. Flooding began in June and lasted for two weeks. Crops were lost and

production was adversely affected.

The government does not dispute that extraordinary high flows in the River caused

overbank flooding. DX3015-284. Based on his modeling, which the court has rejected

as unreliable, Mr. Woodbury concluded that the changes he modeled resulted in fewer

days of flooding than would have occurred without those changes. DX3015-285.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart, that the

flooding in 2014 was the result of higher WSEs. The court finds that the higher WSEs

were caused by and were a foreseeable result of the Corps’ System and River Changes

which resulted in more severe flooding than would have occurred without these Changes.

169
 The court has considered the plaintiffs’ takings claim based on flooding in 2008,

2010, 2013, and 2014 and finds that Anthony and Mary Salter and Franklin and Cheryl

Salter have shown that repeated flooding has interfered with plaintiffs’ use and

enjoyment of their property and was caused by and was the foreseeable result of the

Corps’ System and River Changes. In the next phase of the litigation the plaintiffs will

be allowed to prove the remaining elements of their takings claim.

16. Property 16: George Neale Farm, LLC; Neale Farms, Inc.;
and Jeff and Kelli Shaner

This property is located adjacent to river mile 639. The plaintiffs own a portion of

the property in fee simple and share crop a portion. They claim a taking of the property

based on flooding in 2007 and 2008 (50 acres of approximately 1,200 acres due to

seepage and/or blocked drainage) and flooding in 2010, 2011, and 2014 (due to overbank

flooding). Tr. 1364-1423. The property is located near several River projects including

the Calhoun Chute at river mile 637.5 constructed in 2009, the Boyer Backwater Chute at

river miles 636 to 634 constructed in 2010, together with various chevrons and dike and

revetment changes at river miles 642 and 637 to 634. DX3015-287.

The plaintiffs testified that in 2007 interior blocked drainage resulted from a high

River blocking drainage ditches. It occurred in mid-June and lasted one to two weeks

causing the loss of 50 acres of crops.

The government disputes that any flooding occurred in June.

Dr. Christensen’s and Dr. Hromadka’s testimony and analyses do not show a

higher River in mid-June but only in May 2007. Because the plaintiffs’ testimony is

170
inconsistent with the plaintiffs’ experts’ testimony, a takings claim based on flooding in

2007 must be rejected.

In 2008, plaintiffs claim there was interior blocked drainage and/or seepage in

mid-June for one to two weeks and that approximately 50 acres of crops were lost.

The government does not dispute that there was flooding on the property in June.

DX3015-291. In fact, Mr. Woodbury agrees that seepage and/or blocked drainage may

have been a factor in causing the property to be wet. DX3015-290. Based on his

modeling, which the court has rejected as unreliable, Mr. Woodbury concluded that the

changes he modeled resulted in more days of flooding than would have occurred without

those changes. DX3015-291.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2008 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2010, the property flooded again after the crop had been planted. Flooding

receded then flooded again repeatedly after the River left its banks five to six times that

year. Property was inundated with floodwaters on and off from March through

October/November. Each event lasted approximately one to two weeks. This type of

flooding was extremely unusual and never experienced before. Crops were lost and

production was adversely affected.

171
 The government does not dispute that there was overbank flooding in 2010

consistent with plaintiffs’ testimony. DX3015-292. Based on his modeling, which the

court has rejected as unreliable, Mr. Woodbury concluded that the changes he modeled

resulted in more days of flooding than would have occurred without those changes.

DX3015-293.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart, that the

flooding in 2010 was the result of higher WSEs. The court finds that the higher WSEs

were caused by and were a foreseeable result of the Corps’ System and River Changes

which resulted in more severe flooding than would have occurred without these Changes.

In 2011, the flooding crested in July and the entire property was completely

inundated with water. The flooding left sand deposits that were 10 to 15 feet deep in

places. 2011 was the first time there was extensive physical damage and erosion to the

property which included huge scour holes and debris. The scope and duration of the

2011 flood were unprecedented.

For the same reasons as discussed above with regard to Property 7, plaintiffs

cannot establish a taking based on the 2011 flood.

In 2014, overbank flooding started at the beginning of June and lasted one to two

weeks. Approximately 40 percent of the property was flooded, killing the crops and

creating erosion.

The government does not dispute that overbank flooding occurred due to elevated

flows in the River. DX3015-296. Based on his modeling, which the court has rejected as

172
unreliable, Mr. Woodbury concluded that the changes he modeled resulted in fewer days

of flooding than would have occurred without those changes. DX3015-297.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart, that the

flooding in 2014 was the result of higher WSEs. The court finds that the higher WSEs

were caused by and were a foreseeable result of the Corps’ System and River Changes

which resulted in more severe flooding than would have occurred without these Changes.

The court has considered the plaintiffs’ takings claim based on flooding in 2008,

2010, and 2014 and finds plaintiffs have shown that repeated flooding has interfered with

plaintiffs’ use and enjoyment of their property and was caused by and was the foreseeable

result of the Corps’ System and River Changes. In the next phase of the litigation the

plaintiffs will be allowed to prove the remaining elements of their takings claim.

17. Property 17: Robert D. Adkins, Sr.; Betty Adkins; Robert D. Adkins,
Jr.; Ken Adkins; and Robert Adkins & Sons Partnership

This property is located at river mile 611. The plaintiffs own the property in fee

simple. The property is protected on three sides by federal levees. The takings claim is

based on overbank flooding and blocked drainage and/or seepage flooding in 2007, 2008,

2010, 2011, 2013, and 2014. Tr. 1423-1483.

In 2007, flooding occurred on the property in April and May during the planting

seasons. Plaintiffs claim that 400 of the 1,044 acres flooded. Flooding of the property

outside the levees was the result of overbank flooding and flooding inside the levees was

caused by seepage. About 50 to 60 percent of the property inside the levees was flooded

for about three weeks. Crops were lost.

173
 The government does not dispute that there was overbank flooding on the property

near the River and then blocked drainage and seepage on the landward side of the levee,

caused by a combination of local rainfall and elevated water levels in the River.

DX3015-314. Based on his modeling, which the court has rejected as unreliable, Mr.

Woodbury concluded that the changes he modeled resulted in fewer days of flooding than

would have occurred without those changes. DX3015-316.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2007 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

The 2008 flooding was similar to the 2007 flooding in severity, duration, and

damage. However, the flooding occurred later than in 2007. The flooding occurred in

June and crops were lost.

The government does not dispute that the flooding in 2008 was caused by a

combination of local rainfall and elevated water levels and that it occurred in June.

DX3015-317. Based on his modeling, which the court has rejected as unreliable, Mr.

Woodbury concluded that there would have been no change in the days of flooding with

or without the changes he modeled. DX3015-318.

The court finds, based Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2008 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

174
System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2010, flooding was similar to 2007 and 2008 but the water was higher and

stayed longer against the levees. Flooding occurred in late June and crops were lost.

The government does not dispute that there was serious flooding in 2010. The

government agrees that elevated WSEs in the River along with rainfall caused blocked

drainage and seepage on the property, as well as overbank flooding. DX3015-319.

Based on his modeling, which the court has rejected as unreliable, Mr. Woodbury

concluded that the changes he modeled resulted in more days of flooding than would

have occurred without those changes. DX3015-320.

The court finds, based Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2010 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2011, flooding began in early June and lasted through August. The River was

up against the levees. About 730 acres flooded. The property outside the levees was

inundated by overbank flooding. The floodwaters were between 10 to 20 feet deep

outside the levees. The property inside the levees was inundated by seepage and to a

lesser extent blocked drainage. Floodwaters were between four to six feet deep inside the

levees. The entire property inside the levees was inundated except for the northernmost

part where the homes are. Flooding outside the levees caused extensive outside damage

175
including erosion, deep scour, sand deposits, some of which were ten feet high, and dead

trees. All the crops were lost and there were significant clean-up and restoration efforts.

For the same reasons as discussed above with regard to Property 7, plaintiffs

cannot establish a taking based on flooding in 2011.

In 2013, flooding occurred from a high River all summer long through August,

resulting in seepage and/or blocked drainage inside the levees. Property outside the levee

was inundated by overbank flooding. Crops were lost.

The government acknowledges a higher River in late May to early June 2013, but

not for the period claimed by plaintiffs. DX3015-323.

Dr. Hromadka’s opinion, consistent with Dr. Christensen, also shows flooding in

late May early June and not later in the summer, as plaintiffs claim.

Because plaintiffs’ flooding claim is not supported by its experts, plaintiffs’ claim

that flooding occurred in the summer of 2013 does not support the plaintiffs’ takings

claim.

In 2014, flooding occurred in late June through early July. Property outside the

levees was inundated by overbank flooding and water was against the levees.

Approximately 50 percent of the property was flooded. Crops were lost.

The government does not dispute overbank flooding caused by a combination of

local rainfall and elevated water levels in the River nor that these factors also caused

blocked drainage and resulted in water on plaintiffs’ property during late June and early

July. DX3015-325. Based on his modeling, which the court has rejected as unreliable,

176
Mr. Woodbury concluded that the changes he modeled resulted in fewer days of flooding

than would have occurred without those changes. DX3015-326.

The court finds, based on its careful review of the WSE chart, that the plaintiffs

have not established a difference in WSEs for 2014 between the “but for” world and the

actual world modeled by Dr. Hromadka. Therefore the plaintiffs cannot base a takings

claim based on the flooding in 2014. Having failed to show any difference in WSEs in

2014 between the “but for” and actual worlds, plaintiffs cannot base there takings claim

on flooding in 2014.

The court has considered the plaintiffs’ takings claim based on flooding in 2007,

2008, and 2010 and finds plaintiffs have shown that repeated flooding has interfered with

plaintiffs’ use and enjoyment of their property and was caused by and was the foreseeable

result of the Corps’ System and River Changes. In the next phase of the litigation the

plaintiffs will be allowed to prove the remaining elements of their takings claim.

18. Property 18: Husz Farm Corp.; K&J Husz, Inc.; Dale and Sheryl Husz
and Keith and Julia Husz

This property is located approximately one mile inland from river mile 606. The

property is owned in fee simple. The property is protected on three sides by federal

levees that have never over-topped. Plaintiffs claim a taking based on blocked drainage

and seepage in 2007, 2008, 2010, 2011, and 2014.78 Tr. 1548-1577. Corps construction

78
The government established that the property is near an interior drainage structure, and historic
ponding has occurred on the entire SW parcel and half of the SE parcel. DX168, Tr. 8096.
These facts are relevant in the next phase of this litigation regarding the “character of the
property,” but given the limited history of flooding on the property prior to 2007 and the Corps’
System and River Changes, these facts do not negate causation.
177
activities in the immediate area of this property include: Hidden Lake backwater at river

mile 603 and dike notches at river mile 607. DX3015-328.

In 2007, flooding affected the southernmost portion of the property. The flooding

took place from May to June and lasted two weeks during the critical planting season.

The water depths varied from area to area but were deep enough to kill the crops.

The government does not dispute the property flooded during this period due to

elevated River levels leading to blocked drainage in combination with local rainfall.

DX3015-329. Based on his modeling, which the court has rejected as unreliable, Mr.

Woodbury concluded that the changes he modeled resulted in fewer days of flooding than

would have occurred without those changes. DX3015-330.

The court finds, based Dr. Hromadka’s testimony and the WSE chart and Mr. Tofani’s

testimony, that the flooding in 2007 was the result of higher WSEs. The court finds that

the higher WSEs were caused by and were a foreseeable result of the Corps’ System and

River Changes which resulted in more severe flooding than would have occurred without

these Changes.

In 2008, seepage and/or blocked drainage occurred from May to June and were

similar to 2007 but the duration was longer. Flooding affected the southernmost portion

of the property. Water depths varied from area to area but were deep enough to kill the

crops.

The government does not dispute the property flooded during this period because

of blocked drainage combined with local rainfall. DX3015-331. Based on his modeling,

which the court has rejected as unreliable, Mr. Woodbury concluded that there would

178
have been no change in the days of flooding with or without the changes he modeled.

DX3015-332.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2008 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2010, there was a high River for three months in the summer. The flooding

occurred because of blocked drainage which affected virtually the entire property. Water

depths ranged from one inch to three feet depending on the location. The crops were lost.

The government does not dispute that flooding was caused by a combination of

heavy local rainfall and elevated water levels in the River nor that these factors also

caused blocked drainage for the period identified by the plaintiffs. DX3015-333. Based

on his modeling, which the court has rejected as unreliable, Mr. Woodbury concluded

that the changes he modeled resulted in more days of flooding than would have occurred

without those changes. DX3015-334.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2010 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

179
 In 2011, flooding occurred because of seepage and/or blocked drainage. Soil was

still somewhat saturated from the 2010 flooding, and, starting in early June, flooding in

2011 lasted for over 90 days. The entire property was affected and crops were lost.

For the same reasons as discussed with regard to Property 7, plaintiffs cannot

establish a taking based on flooding in 2011.

In 2014, the River ran high in late June. Yields were fewer on the lower part of

the farm and crops were lost.

The government does not dispute flooding occurred because of a higher River

level and heavy rainfall in June and July that caused blocked drainage. DX3015-337.

Based on his modeling, which the court has rejected as unreliable, Mr. Woodbury

concluded that the changes he modeled resulted in fewer days of flooding than would

have occurred without those changes. DX3015-339.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2014 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

The court has considered the plaintiffs’ takings claim based on flooding in 2007,

2008, 2010, and 2014 and finds plaintiffs have shown that repeated flooding has

interfered with plaintiffs’ use and enjoyment of their property and was caused by and was

the foreseeable result of the Corps’ System and River Changes. In the next phase of the

180
litigation the plaintiffs will be allowed to prove the remaining elements of their takings

claim.

19. Property 19: Robert L. Roth; BCR Properties, L.P.

This property is located at river mile 598.5. The property is partially protected by

a federal levee. There are 19 acres on the River side of the levee and 49 acres on the

landward side of the levee. The property is owned in fee simple and is leased. Plaintiffs

claim a taking based on flooding in 2008, 2010, and 2011 due to overbank flooding and

on seepage and/or blocked drainage in all years. Tr. 1580-1653.

In 2008, damages to the property were caused by overbank flooding on the

unprotected side of the levee and subsurface flooding on the protected side of the levee

from seepage and/or blocked drainage due to an elevated groundwater table.

Approximately 30 acres of the 49 levee-protected acres and approximately 15 of the 19

unprotected acres were inundated due to overbank flooding and an elevated groundwater

table. The flooding lasted from early June to mid-July. Approximately 45 acres were

lost as a result of the flooding (30 levee-protected acres, 15 unprotected acres).

The government does not dispute that there was flooding caused by a combination

of overbank flooding on the unprotected portion of the property and blocked drainage on

the protected portion of the property. DX3015-342. Mr. Woodbury based on his

modeling, which the court has rejected as unreliable, concluded that the changes he

modeled resulted in fewer days of flooding. DX3015-343.

The court finds based on Dr. Hromadka’s testimony and accompanying WSE chart

and Mr. Tofani’s testimony, that flooding in 2008 was caused by higher WSEs that

181
caused blocked drainage and seepage as well as overbank flooding. The court finds that

the higher WSEs were caused by and a foreseeable result of the Corps’ System and River

Changes which made flooding on the property more severe than would have occurred

without these Changes.

In 2010, approximately 30 of the 49 levee-protected acres and approximately 15 of

the 19 unprotected acres were inundated due to overbank flooding and/or an elevated

groundwater table. Flooding lasted from early June to mid-or late July. Crops on

approximately 45 acres of the property (30 levee-protected acres, 15 unprotected acres)

were lost as a result of the flooding.

The government does not dispute that there was flooding. Mr. Woodbury states

that flooding was caused by a combination of overbank flooding on the unprotected

portion of the property and blocked drainage on the protected portion of the property

together with seepage. DX3015-344. Based on his modeling, which the court has

rejected as unreliable, Mr. Woodbury concluded that the changes he modeled resulted in

more days of flooding than would have occurred without those changes. DX3015-345.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2010 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2011, all of the acreage was inundated. The levee-protected acres were under

one to two feet of water and the unprotected acres were under 10 to 12 feet of water.

182
Flooding lasted from early June to August. The floodwaters took a long time to recede.

All of the corn crop on this property was lost. In addition, there was damage to the land

from erosion, scouring, sand deposits, and debris that required reclamation and clean-up.

For the same reasons as discussed above with regard to Property 7, plaintiffs

cannot establish a taking based on flooding in 2011.

The court has considered the plaintiffs’ takings claim based on flooding in 2008

and 2010 finds plaintiffs have shown that the flooding was caused by and was the

foreseeable result of the Corps’ System and River Changes. Because the court is not

convinced that the plaintiffs have yet to establish severity based on two flooding events,

in the next phase of the litigation, plaintiffs will have to meet the severity standard

articulated in Ark. Game & Fish III before plaintiffs will be allowed to prove the

remaining elements of their takings claim.

20. Property 20: David and Kimberly Sieck and Daniel Sieck

This property is located at river mile 597. The property is located approximately

one mile away from the River. The property is owned in fee simple.79 The plaintiffs

claim a taking based on flooding from seepage and/or blocked drainage in 2008, 2010,

2011, and 2013. Tr. 943-1100. In the vicinity of the property there are notched dikes and

deteriorated revetments, as well as a mitigation project on St. Mary’s Island. DX3015-

349; Def.’s Br., Table 1.

79
As with several other properties, this property has had historic ponding areas. Tr. 8096:16-19.
The plaintiffs also acknowledged prior flooding in 1983, 1984, 1993, 1995, and 1997. Tr.
1040:16-1043. The relevance of prior flooding will be considered in Phase II.
183
 In 2008, seepage and/or blocked drainage occurred in June. There was crop loss

and reduced yields.

The government disputes a claim of flooding in 2008 on the grounds that it is not

properly before the court. As discussed in fn. 80 below, the court finds the claim for a

taking based on flooding in 2008 is properly before the court. 80

Mr. Woodbury did not provide modeling for 2008 for these plaintiffs.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart Mr.

Tofani’s testimony, that the flooding in 2008 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2010, floodwaters reached two to three feet on the property. Flooding peaked

in June and lasted for approximately two to three weeks. There was crop loss and

reduced yields.

The government does not dispute that there was flooding on the property caused

by heavy rains and elevated flows in the River which impaired drainage. Mr. Woodbury

also testified that seepage may have been an additional factor. DX3015-350. Based on

his modeling, which the court has rejected as unreliable, Mr. Woodbury concluded that

80
The government has challenged the Siecks inclusion of a takings claim based on flooding in
2008. For the reasons stated in a separate order issued today, the government’s objection to the
Siecks’ claim has been denied.
184
the changes he modeled resulted in more days of flooding than would have occurred

without those changes. DX3015-351.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2010 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2011, flooding lasted from May to September for 110 days. Floodwaters were

streaming through the property ranging from three to five feet. There was crop loss and

land needed to be reclaimed.

For the same reasons as discussed above with regard to Property 7, plaintiffs

cannot establish a taking based on flooding in 2011.

In 2013, floodwaters reached two to three feet deep. Flooding began in May and

lasted approximately three weeks. Crops were lost and yields were reduced.

The government does not dispute that there was a period of time when the River

was above the modeled drainage level. Mr. Woodbury testified that this flooding was

caused by local rainfall coupled with elevated water levels in two lakes east of the

property. DX3015-354. Based on his modeling, which the court has rejected as

unreliable, Mr. Woodbury concluded that the changes he modeled resulted in more days

of flooding than would have occurred without those changes. DX3015-355.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2013 was the result of higher WSEs. The court

185
finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

The court has considered the plaintiffs’ takings claim based on flooding in 2008,

2010, and 2013 finds plaintiffs have shown that repeated flooding has interfered with

plaintiffs’ use and enjoyment of their property and was caused by and was the foreseeable

result of the Corps’ System and River Changes. In the next phase of the litigation the

plaintiffs will be allowed to prove the remaining elements of their takings claim.

21. Property 21: Merril Sargent (Deceased); Ron and Dale Sargent

This property is located at river mile 585. The property is owned in fee simple.

The plaintiffs’ claim a taking for overbank flooding in 2008, 2010, 2011 and 2014. The

property has had a history of flooding in 1984, 1993, 1995, 1996, 1997, and 1999.81 Tr.

1485-1518. There is a private levee to the east. Corps construction activities in the area

include: (1) dike notching at the south end of the property in 2004; (2) Tobacco Island

chute at river mile 586 was built in 2002; and (3) dike and chevron modifications at river

miles 589 to 587 in 2004. DX3105-357

In 2008, flooding began in mid-June and lasted one to two weeks. All crops had

been planted and some crops were lost and production was adversely affected.

81
As noted previously, any history of flooding on individual plaintiff properties will be
considered in Phase II of this litigation which includes consideration of the character of the land
at issue and reasonable investment-backed expectations. However, the fact that the property had
a history of flooding does not mean that the Corps’ System and River Changes did not cause
greater flooding than would have occurred without those Changes.
186
 The government does not dispute that there was flooding on the property due to a

combination of seepage, overbank flooding, and local rains and elevated River stage.

DX3015-358. Based on his modeling, which the court has rejected as unreliable, Mr.

Woodbury concluded that the changes he modeled resulted in fewer days of flooding than

would have occurred without those changes. DX3015-359.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart, that the

flooding in 2008 was the result of higher WSEs. The court finds that the higher WSEs

were caused by and were a foreseeable result of the Corps’ System and River Changes

which resulted in more severe flooding than would have occurred without these Changes.

In 2010, flooding lasted two to three weeks and all crops on the property were lost.

The government does not dispute that the flooding was caused by overbank

flooding and was exacerbated by heavy local rainfall and that seepage and blocked

drainage were additional factors in flooding. DX3015-360. Based on his modeling,

which the court has rejected as unreliable, Mr. Woodbury concluded that the changes he

modeled resulted in more days of flooding than would have occurred without those

changes. DX3015-361.

The court finds the flooding in 2010 was due to levee overtopping based on the

testimony of Mr. Tofani (who relied on Dr. Christensen’s data). PX2554. Mr. Tofani

found that in 2010 the private levee on the Sargent property would have failed even

without the Corps’ System and River Changes. Tr 14957:8-16. Plaintiffs have not made

a takings claim with regard to levee overtopping or breach. Because the court has no way

of determining if the flooding on the property was due to overbank flooding as opposed

187
to levee overtopping or breach plaintiffs have not met their causation burden and cannot

rely on the 2010 flood to support a takings claim.

In 2011, flooding began in early June and lasted for four months. Up to ten feet of

water inundated the property and all crops were lost. There were extensive sand deposits

and erosion on the property. Plaintiffs were unable to plant 25 to 30 acres in 2012 due to

the deep sand deposits.

For the same reasons as discussed above with regard to Property 7, plaintiffs

cannot establish a taking based on flooding in 2011.

In 2014, flooding occurred around June 22 and lasted about one to two weeks. All

crops were lost except for about 10 to 15 acres.

The government does not dispute that flooding took place and was caused by

overbank flooding and blocked drainage that was exacerbated by local rainfall. In

addition, the government acknowledged that seepage may have been an additional factor

in the flooding. DX3015-364. Based on his modeling, which the court has rejected as

unreliable, Mr. Woodbury concluded that the changes he modeled resulted in fewer days

of flooding than would have occurred without those changes. DX3015-365.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart, that the

flooding in 2014 was the result of higher WSEs. The court finds that the higher WSEs

were caused by and were a foreseeable result of the Corps’ System and River Changes

which resulted in more severe flooding than would have occurred without these Changes.

The court has considered the plaintiffs’ takings claim based on flooding in 2008

and 2014 and finds plaintiffs have shown that the flooding was caused by and was the

188
foreseeable result of the Corps’ System and River Changes. Because the court is not

convinced that the plaintiffs have yet to establish severity based on two flooding events,

in the next phase of the litigation, plaintiffs will have to meet the severity standard

articulated in Ark. Game & Fish III before plaintiffs will be allowed to prove the

remaining elements of their takings claim.

22. Property 22: Roth, Inc.; Steven G. Roth; BCR Properties, L.P.

This property is located at river mile 575 approximately one mile from the River.

The property is owned in fee simple. Plaintiffs claim a taking for this property based on

flooding in 2008, 2010, and 2011 due to seepage and/or blocked drainage. Tr: 1580-

1653. The property is protected by the Upper L-575 levee. There are numerous areas

near the property where dikes, were notched, lowered, or allowed to deteriorate. In

addition, there are several mitigation projects that have been acquired, including Auldon

Bar and Van Horn’s Bend. DX3015-367; Def.’s Br., Table 1. The government claims

that neither of these have been developed.

In 2008, approximately half of the 572 tillable acres of the property were rendered

marshy due to an elevated groundwater table preventing the planting of a crop. Flooding

lasted from mid- to late May to late June. As a result of the flooding, no crop could be

planted.

The government does not dispute that flooding on the property was caused by a

combination of heavy local rainfall and elevated water levels in the River which caused

blocked drainage. DX3015-368. Based on his modeling, which the court has rejected as

189
unreliable, Mr. Woodbury concluded that the changes he modeled resulted in fewer days

of flooding than would have occurred without those changes. DX3015-369.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2008 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2010, approximately half of the 572 tillable acres of this property were rendered

marshy due to an elevated groundwater table. Flooding lasted from early June to mid-

July. The corn crop on the affected acreage was lost as a result of the flooding.

The government does not dispute that there was flooding on the property caused

by a combination of heavy local rainfall and elevated water levels in the River, resulting

in blocked drainage and seepage may have been an additional factor in the flooding.

DX3015-370. Based on his modeling, which the court has rejected as unreliable, Mr.

Woodbury concluded that the changes he modeled resulted in more days of flooding than

would have occurred without those changes. DX3015-371.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2010 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

190
 In 2011, the property flooded because of the Upper L-575 levee breach. All the

property was inundated, with the levee-protected acres being under two to four feet of

water and the unprotected acres being under ten feet of water. Flooding lasted from early

June of 2011 to January of 2012. Due to the flooding, no crops were planted on the

property in 2011. In addition, there was damage to the property due to erosion, self-

scouring, and debris that required reclamation and clean-up. Tr. 1578-1653.

As discussed earlier in the opinion, the court has found that the plaintiffs failed to

establish causation for the Upper L-575 levee breach. Therefore, plaintiffs cannot

establish a takings claim based on this flood event.

The court has considered the plaintiffs’ takings claim based on flooding in 2008

and 2010 and finds plaintiffs have shown that the flooding was caused by and was the

foreseeable result of the Corps’ System and River Changes. Because the court is not

convinced that the plaintiffs have yet to establish severity based on two flooding events,

in the next phase of the litigation, plaintiffs will have to meet the severity standard

articulated in Ark. Game & Fish III before plaintiffs will be allowed to prove the

remaining elements of their takings claim.

23. Property 23: Leo Ettleman

This property is located at river mile 571. The property is owned by Mr.

Ettleman’s parents. He farms the property under a share crop agreement. He claims a

taking of his crops based on flooding caused by blocked drainage and/or seepage in 2008

and 2010, and by flooding following a levee breach in 2011. Tr. 1880-2002. The Upper

L-575 levee is located west of the property. Corps’ construction activities near the

191
property includes dike notching from river miles 569 to 556 starting in 2004. DX301-

375.

In 2008, the River was high for an extended period from mid-June to the

beginning of August. The northwest corner and southeast corner were covered by

floodwaters six to 18 inches deep. Approximately 30 percent of the property was

affected. Crop loss occurred and production was adversely affected. Additionally, the

plaintiff had trouble getting the entire crop planted.

The government does not dispute that blocked drainage flooding was caused by a

combination of heavy local rainfall and elevated water levels in the River in 2008 and

that seepage may have been an additional factor. DX3015-376. Based on his modeling,

which the court has rejected as unreliable, Mr. Woodbury concluded that the changes he

modeled resulted in fewer days of flooding than would have occurred without those

changes. DX3015-377.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2008 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2010, flooding was similar to 2008 but lasted longer. Flooding occurred from

approximately mid-June to the end of August. Approximately 60 percent of the property

in the north, east, and south central portions were covered by floodwaters ranging from

six to 24 inches. Crop loss occurred and production was adversely affected.

192
 The government does not dispute that flooding was caused by a combination of

heavy local rainfall and elevated water levels in the River, resulted in blocked drainage

on the property. DX3015-378. Based on his modeling, which the court has rejected as

unreliable, Mr. Woodbury concluded that the changes he modeled resulted in fewer days

of flooding than would have occurred without those changes. DX3015-379.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2010 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2011, overbank flooding occurred following the failure of the Upper L-575

levee. Levee breach occurred on June 29 at river mile 571, which is immediately

adjacent to the property. Floodwaters reached up to four feet on the property and lasted

until late September. The entire crop was lost, there were numerous scour holes several

feet deep, and sand deposits up to four feet deep. The sand deposits still remain on the

property today despite extensive land reclamation. In addition, the top soil was eroded

and there was significant debris, large trees, and garbage that needed to be cleaned up.

As discussed above, the court has found that plaintiff failed to prove causation for

the Upper L-575 levee breach. Plaintiff cannot establish a takings claim based on this

flood event.

The court has considered the plaintiff’s takings claim based on flooding in 2008

and 2010 and finds Leo Ettleman has shown that the flooding was caused by and was the

193
foreseeable result of the Corps’ System and River Changes. Because the court is not

convinced that the plaintiff has yet to establish severity based on two flooding events, in

the next phase of the litigation, plaintiff will have to meet the severity standard

articulated in Ark. Game & Fish III before plaintiff will be allowed to prove the

remaining elements of his takings claim.

24. Property 24: KMJ Farms, Inc.; Brian and Kelly Johnson

This property is located at river mile 564. The property has been owned in fee

simple since 2009. It has been farmed by plaintiffs since 1992. It is located two miles

east of the River. Plaintiffs claim a taking based on flooding in 2007, 2011, and 2013.

Tr. 1654-1722.

In 2007, flooding occurred from May to June. It lasted for a couple of weeks. The

lower pockets of the fields were flooded. There was crop loss and crop production was

adversely affected.

The government does not dispute that flooding in 2007 was caused by a

combination of heavy local rainfall and elevated water levels in the River that caused

blocked drainage and that seepage may have also been an additional factor. DX3015-

384. Based on his modeling, which the court has rejected as unreliable, Mr. Woodbury

concluded that the changes he modeled resulted in fewer days of flooding than would

have occurred without those changes. DX3015-385.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2007 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

194
System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2011, overbank flooding occurred due to the Upper L-575 levee breach.

Flooding lasted for over 100 days from June to September. Floodwaters reached up to

two and a half to three feet deep. Flooding left scouring and sand deposits. The entire

crop was completely destroyed. The rental home on the property was completely

destroyed.

As discussed above, the court has found that plaintiffs failed to establish causation

for the Upper L-575 levee breach. Plaintiffs cannot establish a takings claim based on the

2011 flood.

In 2013, flooding was similar to 2007. It occurred in May and lasted for a couple

of weeks. There was crop loss and production was adversely affected.

The government does not dispute that the property was saturated. DX3015-390.

Based on his modeling, which the court has rejected as unreliable, Mr. Woodbury

concluded that the changes he modeled resulted in more days of flooding than would

have occurred without those changes. DX3015-391.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2013 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

195
 The court has considered the plaintiffs’ takings claim based on flooding in 2007

and 2013 and finds plaintiffs have shown that the flooding was caused by and was the

foreseeable result of the Corps’ System and River Changes. Because the court is not

convinced that the plaintiffs have yet to establish severity based on two flooding events,

in the next phase of the litigation, plaintiffs will have to meet the severity standard

articulated in Ark. Game & Fish III before plaintiffs will be allowed to prove the

remaining elements of their takings claim.

25. Property 25: Payne Valley Farms, LLC

This property is located at river mile 558. The plaintiff owns a portion of the

property in fee simple and share crops a portion. A portion of the property abuts the

River and a portion is landward of an interstate berm. Plaintiff claims a taking based on

flooding in 2007, 2008, 2010, 2011, and 2013. Tr.1804-1879. Some protection is also

provided by the Upper L-575 levee. Corps construction activities in the area include: the

Upper and Lower Hamburg Chutes. DX3015-410. In addition, there are numerous dike

notches and other BSNP structures that have been allowed to deteriorate.

In 2007, 350 acres flooded by blocked drainage and/or seepage. The flooding

lasted from mid-May to early June which caused a majority of the crop to die and also

resulted in the plaintiff being unable to plant on a small portion of the affected land.

The government does not dispute that the property was flooded during this period

and that the cause was precipitation and a higher River causing blocked drainage and

seepage may have been an additional factor in the flooding. DX3015-411. Based on his

modeling, which the court has rejected as unreliable, Mr. Woodbury concluded that the

196
changes he modeled resulted in fewer days of flooding than would have occurred without

those changes. DX3015-412.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2007 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2008, similar to 2007, 350 acres flooded by blocked drainage and/or seepage.

The flooding lasted from mid-May to early June and caused a majority of the crop to die

and also resulted in the plaintiff being unable to plant on a small portion of the affected

land.

The government does not dispute that a combination of heavy local rainfall and

elevated water levels in the River caused flooding on the property during this period

which resulted in blocked drainage and seepage may have been an additional factor in the

flooding. DX3015-413. Based on his modeling, which the court has rejected as

unreliable, Mr. Woodbury concluded that the changes he modeled resulted in fewer days

of flooding than would have occurred without those changes. DX3015-414.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2008 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

197
 In 2010, flooding of approximately 350 acres occurred in June preventing plaintiff

from planting crops.

The government acknowledges that elevated water levels in the River caused

flooding and resulted in blocked drainage and/or seepage. DX3015-415. Based on his

modeling, which the court has rejected as unreliable, Mr. Woodbury concluded that the

changes he modeled resulted in more days of flooding than would have occurred without

those changes. DX3015-416

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2010 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2011, flooding began with blocked drainage and then the Upper L-575 levee

breached. The breach caused inundation of the property west of I-29 with five to six feet

of water and the property east of I-29 with two to three feet of water. The flooding lasted

from mid-May to early August. Crops were lost and there was erosion, scouring, sand

deposits, and debris requiring reclamation. There were deposits of up to ten feet of sand

on the property.

As discussed above, the court has found that plaintiff failed to prove causation for

the Upper L-575 levee breach. Plaintiff cannot establish a taking based on the 2011

flood.

In 2013, flooding was similar to 2007, 2008, and 2010.

198
 The government does not dispute that flooding on the property was caused by a

combination of heavy local rainfall and elevated water levels in the River that resulted in

blocked drainage and seepage may have been an additional factor in the flooding.

DX3015-419. Based on his modeling, which the court has rejected as unreliable, Mr.

Woodbury concluded that the changes he modeled resulted in more days of flooding than

would have occurred without those changes. DX3015-420.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2013 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

The court has considered the plaintiff’s takings claim based on flooding in 2007,

2008, 2010, and 2013 and finds plaintiff has shown that repeated flooding has interfered

with plaintiff’s use and enjoyment of its property and was caused by and was the

foreseeable result of the Corps’ System and River Changes. In the next phase of the

litigation the plaintiff will be allowed to prove the remaining elements of its takings

claim.

26. Property 26: Woltemath Farm, Inc., Hi-Tech Farms, Inc., and
Robert Woltemath

This property is located at river mile 550. The property is owned in fee simple. It

is located approximately one mile from the River and is 5,000 feet landward of the

Middle L-575 levee. Plaintiffs claim a taking based on flooding in 2008, 2010, and 2011.

199
Tr. 2068-2159. The property is located near many mitigation sites and many dikes and

revetments that were notched, lowered, or allowed to deteriorate.

In 2008, flooding occurred from May 26 through June 22. Crops were damaged

and yields were adversely affected.

The government does not dispute that the property flooded during this period due

to blocked drainage because of high flows in the River and seepage may have been an

additional factor in the flooding. DX3015-423. Based on his modeling, which the court

has rejected as unreliable, Mr. Woodbury concluded that the changes he modeled resulted

in fewer days of flooding than would have occurred without those changes. DX3015-

425.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2008 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2010, the property had standing water during flooding that began in June.

Crops were damaged and production was adversely affected.

Based on his modeling, which the court has rejected as unreliable, Mr. Woodbury

concluded that the changes he modeled resulted in more days of flooding than would

have occurred without those changes. DX3015-427.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2010 was the result of higher WSEs. The court

200
finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2011, overbank flooding occurred following the Middle L-575 levee breach.

Following the breach, there were 12 to 15 feet of water on the property for approximately

four months until September. There was extensive damage to the property including sand

deposits six inches to six feet deep, scour holes, and debris requiring extensive land

reclamation.

For the reasons discussed above, the court has determined that plaintiffs failed to

prove causation for the Middle L-575 levee breach. Plaintiffs cannot establish a taking

based on this flood event.

The court has considered the plaintiffs’ takings claim based on flooding in 2008

and 2010 and finds plaintiffs have shown that the flooding was caused by and was the

foreseeable result of the Corps’ System and River Changes. Because the court is not

convinced that the plaintiffs have yet to establish severity based on two flooding events,

in the next phase of the litigation, plaintiffs will have to meet the severity standard

articulated in Ark. Game & Fish III before plaintiffs will be allowed to prove the

remaining elements of their takings claim.

27. Property 27: Gary Schemmel82

82
Mr. Schemmel was the only plaintiff who did not testify in person at trial. Mr. Schemmel’s
deposition was admitted into evidence. PX931.
201
 This property is located at river mile 548. The property is owned in fee simple.

Plaintiff’s takings claim is based on flooding in 2008, 2010, 2011, and 2014. PX931.

Corps construction activities near the area include: (1) Upper and Lower Hamburg

Chutes at river miles 556 to 551 built in 1996 and 2005; (2) dike modifications at river

miles 548, 546, and 543 in 2003; (3) Kansas Chute at river miles 546 built in 2003; and

(4) Nishnabotna Chute at river mile 543 built in 2005. DX3015-431.

In 2008, flooding occurred in May or June and covered the entire acreage and

plaintiff could not plant any crops.

The government does not dispute that flooding was caused by blocked drainage of

the drainage ditch which runs across the north side of the R-562 levee. DX3015-432.

Based on his modeling, which the court has rejected as unreliable, Mr. Woodbury

concluded that the changes he modeled resulted in fewer days of flooding than would

have occurred without those changes. DX3015-425.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2008 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2010, flooding on the property was very similar to 2008 and prevented plaintiff

from planting crops. The entire property was inundated and the flooding lasted until late

summer.

202
 The government does not dispute that flooding in 2010 was caused by blocked

drainage of the drainage ditch which runs across the north side of the R-562 levee.

DX3015-435. Based on his modeling, which the court has rejected as unreliable, Mr.

Woodbury concluded that the changes he modeled resulted in fewer days of flooding than

would have occurred without those changes. DX3015-436.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2010 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2011, the property flooded for over 100 days from June through September.

The entire property was flooded. The entire crop was lost.

For the same reasons as discussed above with regard to Property 7, plaintiffs

cannot establish a taking based on flooding in 2011.

In 2014, approximately 20 acres were affected by interior blocked drainage and/or

seepage. Flooding occurred in late June and was on the east half of the property, on

which plaintiff had planted 78 acres of soybeans. Crops were lost and production was

adversely affected.

The government does not dispute that flooding in 2014 was caused by a higher

River that resulted in blocked drainage of the drainage ditch which runs across the

northside of the R-562 levee. DX3015-440. Based on his modeling, which the court has

203
rejected as unreliable, Mr. Woodbury concluded that the changes he modeled resulted in

fewer days of flooding than would have occurred without those changes. DX3015-441.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2014 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

The court has considered the plaintiff’s takings claim based on flooding in 2008,

2010, and 2014 and finds Gary Schemmel has shown that repeated flooding has

interfered with plaintiff’s use and enjoyment of his property and was caused by and was

the foreseeable result of the Corps’ System and River Changes. In the next phase of the

litigation the plaintiff will be allowed to prove the remaining elements of his takings

claim.

28. Property 28: Barnes Atchison MO, LLC and Barnes Holt MO, LLC

This property is located at river mile 546. The plaintiffs owns the property in fee

simple and rent it under a cash rental agreement. Plaintiffs claim a taking based on

flooding in 2007, 2010, and 2011. Tr. 2013-2063. The property abuts the River on the

left-descending bank. It is adjacent and landward of the Middle L-575 levee with a

portion Riverward of the levee. The property is located near many mitigation sites

including the Lower Hamburg Bend, Kansas Bend, Nishnabotna, and Upper Hamburg

Bend. Also, many dikes and revetments were notched, lowered, or allowed to deteriorate

near this property. DX3015-443; Def.’s Post Trial Brief, Table 1.

204
 In 2007, flooding occurred from May to June. Most of the flooding that occurred

on the property was due to blocked drainage and seepage. The River was out of its banks

and the River was high and there was no internal drainage. Crops were adversely

affected.

The government does not dispute that a combination of overbank flooding on the

unprotected portion of the property and blocked drainage on the protected portion of the

property caused overbank flooding leading to seepage. DX3015-444. Based on his

modeling, which the court has rejected as unreliable, Mr. Woodbury concluded that the

changes he modeled resulted in fewer days of flooding than would have occurred without

those changes. DX3015-445.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2007 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2010, overbank flooding and blocked drainage and seepage led to crop loss as

in 2007.

The government does not dispute that the property flooded and that it was caused

by overbank and blocked drainage flooding and seepage may have been an additional

factor in the flooding. DX3015-446. Based on his modeling, which the court has

rejected as unreliable, Mr. Woodbury concluded that the changes he modeled resulted in

more days of flooding than would have occurred without those changes. DX3015-447.

205
 The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2010 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2011, the property was underwater all summer. Levees to the north broke and

carried a lot of sand. The property was flooded by overbank flooding from the Middle L-

575 levee breach. The northwest corner of the property suffered quite a bit of damage

with three to four feet of sand deposits on approximately four acres of the property.

Outside of the levee there was scour damage and approximately 85 percent of all the trees

were lost.

For the reasons discussed above, the court has determined that plaintiffs failed to

prove causation for the Middle L-575 levee breach. Plaintiffs cannot establish a takings

claim based on this flood event.

The court has considered the plaintiffs’ takings claim based on flooding in 2007

and 2010 and finds plaintiffs have shown that the flooding was caused by and was the

foreseeable result of the Corps’ System and River Changes. Because the court is not

convinced that the plaintiffs have yet to establish severity based on two flooding events,

in the next phase of the litigation, plaintiffs will have to meet the severity standard

articulated in Ark. Game & Fish III before plaintiffs will be allowed to prove the

remaining elements of their takings claim.

29. Property 29: L&H Investments

206
 This property is located at river mile 540. The property is adjacent to the River

and owned in fee simple. Plaintiff claims a taking based on flooding in 2008, 2010,

2011, 2013, and 2014. The property is protected by a private levee on all sides. Tr.

2715-2765; 3592. There are many notched dikes and lowered revetments in the area.

The property is downstream from the Kansas Bend mitigation site and across from the

Nishnabotna River mitigation area. Specifically, Corps construction activities in the area

include: (1) dike modifications at river miles 548, 546, and 543 in 2003; (2) Kansas

Chute at river mile 546 built in 2003; and (3) Nishnabotna Chute at river mile 543 built in

2005. DX3015-451.

In 2008, the private levee breached in May. Flooding lasted seven to ten days

resulting in crop loss. Plaintiff had to rebuild the levee. The government excavated land

on the northern easement it controls, which funneled the River toward the levee. The

levee breached on the northern part of the property and flooded the property.

The government does not dispute flooding occurred. DX3015-452. Based on his

modeling, which the court has rejected as unreliable, Mr. Woodbury concluded that the

changes he modeled resulted in fewer days of flooding than would have occurred without

those changes. DX3015-453.

The court finds, based on Mr. Tofani’s testimony (who relied on Dr. Christensen’s

data), that flooding was due to levee overtopping which led to breaching that would not

have occurred without higher WSEs. PX2554. Dr. Hromadka’s testimony and the WSE

chart show that the higher WSEs were caused by and were a foreseeable result of the

207
Corps’ System and River Changes which resulted in more severe flooding than would

have occurred without these Changes.

In 2010, the River ran high again in May, June, and July. The flooding lasted

three months. Water entered from the north and south main levee, and the Honey Creek

overtopped and breached the levee. Water inundated nearly 100 percent of the property

with five to six feet deep. There was significant sloughing of the bank into the River.83

Crops were lost and there was significant expense to reclaim the land and rebuild the

levee.

The government does not dispute that there was overbank flooding. DX3015-454.

Based on his modeling, which the court has rejected as unreliable, Mr. Woodbury

concluded that there would have been no change in the days of flooding with or without

the changes he modeled. DX3015-455.

The court finds, based on Mr. Tofani’s testimony (who relied on Dr. Christensen’s

data), that flooding was due to levee overtopping which led to breaching that would not

have occurred without higher WSEs. PX2554. Dr. Hromadka’s testimony and the WSE

chart show that the higher WSEs were caused by and were a foreseeable result of the

Corps’ System and River Changes which resulted in more severe flooding than would

have occurred without these Changes.

83
Although L&H investments makes this claim of erosion, the only evidence presented by the
plaintiff appears to relate to wetlands that are the subject of an easement and not at issue in this
case. Tr. 2750.
208
 In 2011, the entire property flooded in June, July, and August. The levees held

until a few days after the Corps began to release the water from Gavins Point Dam at

160,000 cfs. Water was eight to ten feet deep across the entire property. Flooding

caused erosion of land and sand deposits three to five feet deep. Crops were lost and

there was significant expense to reclaim the land and rebuild the levee. Since 2011, there

has been continuing erosion and sloughing of the bank year after year.

For the same reasons as discussed above with regard to Property 7, plaintiff cannot

establish a taking based on the 2011 flood.

In 2013, approximately half of the property flooded from blocked drainage.

Floodwaters entered from the south. Flooding reached approximately one foot deep.

Flooding occurred in June and lasted for a couple of weeks. Crops were lost and the

property needed to be cleaned up.

The government does not dispute that the property flooded. DX3015-458. Based

on his modeling, which the court has rejected as unreliable, Mr. Woodbury concluded

that the changes he modeled resulted in more days of flooding than would have occurred

without those changes. DX3015-459.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2013 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2014, flooding occurred in June and lasted for a couple of weeks.

209
 The government does not dispute that a combination of an elevated River stage

and heavy local precipitation caused overbank flooding. DX3015-460. Based on his

modeling, which the court has rejected as unreliable, Mr. Woodbury concluded that the

changes he modeled resulted in fewer days of flooding than would have occurred without

those changes. DX3015-461.

The court finds Dr. Hromadka’s testimony and the WSE chart and Mr. Tofani’s

testimony, that the flooding in 2014 was the result of higher WSEs. The court finds that

the higher WSEs were caused by and were a foreseeable result of the Corps’ System and

River Changes which resulted in more severe flooding than would have occurred without

these Changes.

The court has considered the plaintiff’s takings claim based on flooding in 2008,

2010, 2013, and 2014 and finds plaintiff has shown that repeated flooding has interfered

with plaintiff’s use and enjoyment of its property and was caused by and was the

foreseeable result of the Corps’ System and River Changes. In the next phase of the

litigation the plaintiff will be allowed to prove the remaining elements of its takings

claim.

30. Property 30: Garst Farms, Inc.; Charles L. Garst Living Trust;
Charles and Connie Garst

This property is located at river mile 539. It is approximately one and a quarter

miles from the River and is owned in fee simple. Plaintiffs claim a taking based on

flooding in 2007, 2008, 2010, and 2011. Tr. 2471-2574. The property is protected by

federal levee L-550. Corps construction activities in the area include: dike modifications

210
at river mile 543 in 2003 and Nishnabotna Chute at river mile 543 built in 2005.

DX3015-463.

In 2007, the flooding lasted from May 5 to June 6. Approximately 550 acres were

inundated with an average of one to one and half feet of water. Approximately 600 acres

of corn and soy bean were lost as a result of the flooding.

The government does not dispute that a combination of heavy local precipitation

and elevated water levels in the River caused the flooding. DX3015-464. Based on his

modeling, which the court has rejected as unreliable, Mr. Woodbury concluded that the

changes he modeled resulted in fewer days of flooding than would have occurred without

those changes. DX3015-465.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart, that the

flooding in 2007 was the result of higher WSEs. The court finds that the higher WSEs

were caused by and were a foreseeable result of the Corps’ System and River Changes

which resulted in more severe flooding than would have occurred without these Changes.

In 2008, flooding lasted from June 5 to July 1. 600 acres were inundated with one

foot of water and corn and soy beans were lost.

The government does not dispute that a combination of heavy local rainfall and

elevated water levels in the River resulted in blocked drainage that caused flooding. Mr.

Woodbury also acknowledged that seepage may have been an additional factor.

DX3015-466. Based on his modeling, which the court has rejected as unreliable, Mr.

Woodbury concluded that the changes he modeled resulted in fewer days of flooding than

would have occurred without those changes. DX3015-467.

211
 The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2008 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2010, flooding lasted from June 7 to July 1. Approximately 600 acres were

inundated with an average of two feet of water. Approximately 600 acres of corn and

soybean were lost as a result of the flooding.

The government does not dispute that flooding was caused by blocked drainage of

the drainage ditch that lies to the south of the property. Based on his modeling, which the

court has rejected as unreliable, Mr. Woodbury concluded that the changes he modeled

resulted in more days of flooding than would have occurred without those changes.

DX3015-469.

The court finds based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2010 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2011, flooding lasted from June 23 to September 23. The entire property was

inundated with an average of four to five feet of water as a result of the breach of federal

levee L-550. Approximately 666 acres of corn and soybean were lost as a result of the

flooding. There were also damages to the property from erosion, scouring, sand deposits,

212
and debris that required reclamation and clean-up. In addition, approximately 288 acres

were permanently lost to sand deposits of three and half feet deep.

For the same reasons as discussed above with regard to Property 7, plaintiff cannot

establish a taking based on the 2011 flood.

The court has considered the plaintiffs’ takings claim based on flooding in 2007,

2008, and 2010 and finds plaintiffs have shown that repeated flooding has interfered with

plaintiffs’ use and enjoyment of their property and was caused by and was the foreseeable

result of the Corps’ System and River Changes. In the next phase of the litigation the

plaintiffs will be allowed to prove the remaining elements of their takings claim.

31. Property 31: Griffin Farms Partnership

This property is located at river mile 531. The property is owned in fee simple.

Plaintiff claims a taking for flooding in 2008, 2010, and 2011. Tr. 2855-2925.

The property is located approximately one mile east of the River and south of the

federal levee L-550. Corps construction activities in the area include: Langdon Ben

Backwater at river mile 530 and numerous dike and chevron modifications at river miles

531.5 and 529.5 constructed since 2004. DX3015-473. In addition, the property is five

to six miles south of the Lower Hamburg Chute built in 2005 and five to six miles north

of the Deroin Chute built in 2001 and 2002. Def.’s Br., Table 1.

In 2008, there was flooding due to interior blocked drainage and seepage which

prevented planting on 41 acres of the property.84

84
As discussed earlier in the opinion’s Legal Standards section, the court rejects the
government’s contention that in the context of a physical takings claim that the court must
213
 The government does not dispute that flooding was caused by blocked drainage of

the drainage ditch that drains water from the property. DX3015-474. Based on his

modeling, which the court has rejected as unreliable, Mr. Woodbury concluded that the

changes he modeled resulted in fewer days of flooding than would have occurred without

those changes. DX3015-475.

The court finds, Dr. Hromadka’s testimony and the WSE chart and Mr. Tofani’s

testimony, that the flooding in 2008 was the result of higher WSEs. The court finds that

the higher WSEs were caused by and were a foreseeable result of the Corps’ System and

River Changes which resulted in more severe flooding than would have occurred without

these Changes.

In this connection, Dr. Hromadka explained that he reviewed a list from the

National Oceanic and Atmospheric Association (“NOAA”) of the 10 highest crests since

1952 on the Brownsville USGS gage near the properties. He explained that the list shows

that five of those highest crests have occurred after 2006 since the Crops’ System and

River Changes. In addition, for 2012–2016, the water level gage has exceeded the 31.5

feet “action stage” and the 33 feet flood stage for four of the last five years. Dr.

Hromadka explained that the drainage gates for these properties are blocked at 29 to 30

feet.

consider the “parcel as a whole” in deciding whether there has been a taking. This concept,
which is critical in regulatory takings cases, does not apply to physical takings claims. However,
the extent of damages is necessary to prove that interference was sufficiently severe to meet the
standard articulated in Ark. Game & Fish III, 736 F.3d at 1374-5.
214
 In 2010, similar to 2008, there was interior blocked drainage that caused plaintiff

to lose crops on a portion of the property.

The government does not dispute that flooding was caused by blockage in the

drainage ditch that drains water from the property and that high River stages may have

caused seepage. DX3015-476. Based on his modeling, which the court has rejected as

unreliable, Mr. Woodbury concluded that the changes he modeled resulted in more days

of flooding than would have occurred without those changes. DX3015-477.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2010 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2011, federal levee L-550 overtopped and then broke on June 23. Following

the breach of the levee, water inundated all of plaintiff’s bottom land farms, including the

representative property, with eight to nine feet of water. The water remained on the

property for months and did not recede until September/October. The floodwaters

resulted in depositing large amounts of sand, silt, muck, and debris. Grain bins and

irrigation pivots were damaged or destroyed. The damage was extensive and far beyond

anything experienced since 1993. The property had one to two feet of sand and silt on it

covering about 20 percent of the property. There was considerable clean-up expense.

For the same reasons as discussed above with regard to Property 7, plaintiff cannot

establish a taking based on the 2011 flood.

215
 The court has considered the plaintiff’s takings claim based on flooding in 2008

and 2010 and finds plaintiff has shown that the flooding was caused by and was the

foreseeable result of the Corps’ System and River Changes. Because the court is not

convinced that the plaintiff has yet to establish severity based on two flooding events, in

the next phase of the litigation, plaintiff will have to meet the severity standard

articulated in Ark. Game & Fish III before plaintiff will be allowed to prove the

remaining elements of its takings claim.

32. Property 32: Edward and Diana Foral

This property is located at river mile 529.5. The plaintiffs own the property in fee

simple and have a cash lease agreement on the property. They claim a taking based on

flooding in 2010, 2011, 2013, and 2014. Tr. 2775-2830; 2831-2854. Property is

protected by federal levee L-550. Corps construction activities in the area include:

Langdon Bend Backwater at river mile 530 and many dike and chevron modifications at

river miles 531.5 and 529.5 in 2004. DX3015-481.

In 2010, flooding began in June and lasted through September. The floodwaters

were up against the toe of the levee two to three feet. Floodwaters came in from the

northwest corner of the property. The entire crop was lost.

The government does not dispute that extraordinarily high flows in the River

caused overbank flooding on the property. DX3015-482. Based on his modeling, which

the court has rejected as unreliable, Mr. Woodbury concluded that the changes he

modeled resulted in more days of flooding than would have occurred without those

changes. DX301-483.

216
 The court finds, based on Mr. Tofani’s testimony, Dr. Hromadka’s testimony, and

the WSE chart, that the flooding in 2010 was the result of higher WSEs. The court finds

that the higher WSEs were caused by and were a foreseeable result of the Corps’ System

and River Changes which resulted in more severe flooding than would have occurred

without these Changes.

In 2011, flooding began in June and lasted through September for over 100 days.

The entire property flooded with 12 to 14 feet of water. There was extensive damage to

the land including scour holes and large sand deposits. The entire crop was lost.

For the same reasons as discussed above with regard to Property 7, plaintiff cannot

establish a taking based on the 2011 flood.

In 2013, flooding occurred in late May and lasted 20 to 30 days with two to three

feet of water on the property.

The government does not dispute that flooding was caused by a combination of

local rainfall and elevated flows in the River. DX3015-486. Based on his modeling,

which the court has rejected as unreliable, Mr. Woodbury concluded that the changes he

modeled resulted in more days of flooding than would have occurred without those

changes. DX3015-487.

The court finds, based on Mr. Tofani’s testimony, Dr. Hromadka’s testimony, and

the WSE chart, that the flooding in 2013 was the result of higher WSEs. The court finds

that the higher WSEs were caused by and were a foreseeable result of the Corps’ System

and River Changes which resulted in more severe flooding than would have occurred

without these Changes.

217
 In 2014, flooding occurred in the middle of October and destroyed the crop.

The government does not dispute that elevated flows in the River at the end of

June caused overbank flooding. DX3015-488.

Dr. Hromadka however only opined as to flooding in May of 2014.

In such circumstance, the court does not have expert opinion testimony from

plaintiff as to the cause of flooding in the fall of 2014 and, therefore, plaintiffs cannot

establish a taking based on flooding in 2014.

The court has considered the plaintiffs’ takings claim based on flooding in 2010

and 2013 and finds plaintiffs have shown that the flooding was caused by and was the

foreseeable result of the Corps’ System and River Changes. Because the court is not

convinced that the plaintiffs have yet to establish severity based on two flooding events,

in the next phase of the litigation, plaintiffs will have to meet the severity standard

articulated in Ark. Game & Fish III before plaintiffs will be allowed to prove the

remaining elements of their takings claim.

33. Property 33: Ideker Farms, Inc.

This property is located at river mile 512. The property is owned in fee simple

and plaintiff claims a taking based on flooding in 2007, 2008, 2010, 2011, 2013, and

2014.85 Tr. 4105-4241. Corps construction activities in the area include: (1) dike

construction and notching near the property; (2) dike alteration at river mile 512; and (3)

85
Ideker Farms also had a takings claim based on erosion. For the same reason that the court has
rejected the other taking-by-erosion claims, the court rejects this claim for lack of evidence. The
plaintiff did not present the court with evidence of the before and after property boundaries from
which to determine the amount of erosion.
218
Corps operations at the Thurnau Wildlife Refuge directly south of the property.

DX3015-491; DX3015-492. The Corning Levee District levee separates the refuge and

the property. The property is protected by a private levee built by plaintiff.

In 2007, the entire farm flooded for 30 to 60 days beginning in May. Floodwaters

entered the farm (inside the mainline levees on the west and south) from the south and

east, coming from the Thurnau mitigation site. The private levees held, but at that time

there was no levee on the east side of the farm furthest from the River. Extensive

sandbagging operations occurred. The floodwaters entering the farm were estimated to

be two to ten feet deep. Grain bins and irrigation equipment were damaged or destroyed.

Some land reclamation was necessary. The 55 acres Riverward of the mainline levee

were flooded with an estimated nine to ten feet on the levee, four to five feet overbank.

The River cabin outside the levee flooded for the first time and required extensive

renovation.

The government does not dispute that a combination of heavy local rainfall and

extraordinarily high River flows led to the levee breaches and caused overbank flooding

on the property. DX3015-493. Based on his modeling, which the court has rejected as

unreliable, Mr. Woodbury concluded that the changes he modeled resulted in fewer days

of flooding than would have occurred without those changes. DX3015-494

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2007 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

219
System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2008, flooding began in mid-June and lasted 30 to 45 days. The Ideker levees

held. Like 2007, the “hole” in the levee system at Thurnau allowed waters to enter the

wetland mitigation site and wrap around the Ideker farm. Extensive sandbagging

operations were undertaken on the southeast corner of the Ideker farm and blocked the

surface waters from entering the farm. However, a portion of the farm sustained flood

damage due to seepage and blockage of the drainage culverts. The drainage ditches on

the property filled and flowed over on to some crops, sustaining water from one inch to

one foot deep. A portion of the crops died but was re-planted. Grain bins and irrigation

equipment again sustained damage, but this time more limited damage. The 55 acres

Riverward of the Ideker mainline levee again flooded due to overbank flooding much like

2007. The cabin on the property adjacent to the River was again flooded and required

renovation.

The government does not dispute that elevated water levels in the River caused

overbank flooding of the property on the riverward side of the levee and blocked drainage

on the landward side of the levee. DX3015-495. Based on his modeling, which the court

has rejected as unreliable, Mr. Woodbury concluded that the changes he modeled resulted

in more days of flooding than would have occurred without those changes. DX3015-496.

The court finds based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2008 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

220
System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2010, flooding was worse than in 2007 and 2008. Once again, the high waters

entered from the Thurnau mitigation site and wrapped around the farm. Sandbagging

occurred along the tie-back levee and the state highway to block the Thurnau waters from

entering the farm from the southeast. The efforts were successful until the mainline levee

breached on the northwest corner of the farm, leaving a 90-foot deep scour hole

destroying farmland. Floodwaters entered the breach side on the northwest corner of the

farm, then flowed south blowing out and exited the south levee flowing into Thurnau.

After the breaches, the Thurnau waters became one with the waters entering back through

the breach site. The entire farm was flooded for approximately 90 days with floodwaters

on the north side of the property reaching three feet deep and 11 to 13 feet deep on the

south end of the farm. The farm, home, structures, and equipment sustained extensive

damage. The farmhouse flooded and had to be demolished and replaced. The River

cabin was again flooded and required renovation. Up to five feet of sand were left on the

60- to 70-acre area in the northwest of the farm in the vicinity of the levee breach.

Grading equipment was used to remove sand and relocate and rebuild the mainline levee

on the west and south areas, widening it two to three feet and raising it two feet.

Additionally, levees were built on the east side of the farm to negate floodwaters

emptying into the farm from the east in the future.

The government does not dispute that flooding was caused by elevated River

stages. DX3015-497. Based on his modeling, which the court has rejected as unreliable,

221
Mr. Woodbury concluded that the changes he modeled resulted in more days of flooding

than would have occurred without those changes. DX3015-498.

The court finds, based on Mr. Tofani’s testimony, that flooding was due to levee

overtopping that would not have occurred without the System and River Changes.

PX2554; see also Tr. 14957:17-14958:4. Dr. Hromadka’s testimony and the WSE chart

show that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2011, Riverbank flooding began on the Riverward side of the Ideker mainline

levee on Memorial Day weekend. Once again, floodwaters entered Thurnau and flowed

east and north, reaching the new Ideker levee on the east side of the farm, but these

floodwaters were blocked by the Ideker south mainline levee and the new east levee. The

levee surrounding the farm held, where as other levees including federal levees in the

region began to fail. The levees failed on June 19, and the reinforced, well maintained

levees were the last to fail in the area. Water depth on the farm reached six to 16 feet,

lasting over 100 days and leaving three to five feet of sand over approximately 70 acres

of the farm. The farm sustained extensive damage as a result of the 2011 flood.

Extensive land reclamation was required at great expense to remove sand and debris.

Grain bins and irrigation equipment were again damaged or destroyed. The River cabin

was completely destroyed and torn down. The cabin was replaced and was built to new

higher elevation. The farm sustained a complete crop loss.

222
 For the same reasons as discussed above with regard to Property 7, plaintiff cannot

establish a taking based on the 2011 flood.

In 2013, flooding began in May and lasted 30 to 45 days. 55 acres on the

Riverward side of the Ideker mainline levee flooded from overbank flooding. There were

no levee breaches. The water was estimated at seven to eight feet on the mainline levee

on the west side and two to three feet over the River bank. The new River cabin was not

flooded.

The government does not dispute that flooding was caused by elevated River

stages in the River on the portion of the property on the Riverward side of the levee

caused overbank flooding and that seepage may have also been a factor. DX3015-501.

Based on his modeling, which the court has rejected as unreliable, Mr. Woodbury

concluded that there would have been no change in the days of flooding with or without

the changes he modeled. DX3015-502.

The court finds based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2013 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2014, the 55 acres on the Riverward side of the Ideker mainline levee again

flooded much like 2013. Flooding began in June with the peak water in late June but

drainage was impacted periodically from June to October. Water reached the base of the

mainline levee on the west side and was estimated at one to two feet over the River bank.

223
Floodwaters were not as deep as in 2013. Farming this acreage Riverward of the levee

was determined to be no longer sustainable in light of the flood-prone River.

The government does not dispute that elevated River stages caused overbank

flooding on the portion of the property on the Riverward side of the levee and that

blocked drainage and seepage may have been additional factors in the flooding.

DX3015-503. Based on his modeling, which the court has rejected as unreliable, Mr.

Woodbury concluded that the changes he modeled resulted in fewer days of flooding than

would have occurred without those changes. DX3015-504.

The court finds based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2014 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

The court has considered the plaintiff’s takings claim based on flooding in 2007,

2008, 2010, 2013, and 2014 and finds Ideker Farms, Inc. has shown that repeated

flooding has interfered with plaintiff’s use and enjoyment of their property and was

caused by and was the foreseeable result of the Corps’ System and River Changes. In the

next phase of the litigation the plaintiff will be allowed to prove the remaining elements

of its takings claim.

34. Property 34: Drewes Farms, Inc.; Eddie Drewes; David Drewes; Rita
K. Drewes Revocable Trust; Robert W. Drewes Revocable Trust

224
 This property is located one and half miles east of river mile 507. The property is

owned in fee simple and plaintiffs claim a taking based on flooding in 2007, 2010, and

2011. Tr. 3306-3345. The property is near the Thurnau Mitigation Area and Rush

Bottom Bend which were built from 2006 to 2008. Def.’s Post Trial Brief, Table 1.

In 2007, the Union Township and Big Tarkio levees overtopped and breached.

There was no history of flooding before the levee breaches. Flood depths varied from

one inch to one foot deep. Flooding occurred during the planting season and lasted for

approximately one month. There was crop damage, damage to structures, replanting of

crops, and clean-up of debris.

The government does not dispute that there was flooding due to blocked drainage

and the levee failure, which may have been exacerbated by heavy local rainfall.

DX3015-507. Based on his modeling, which the court has rejected as unreliable, Mr.

Woodbury concluded that the changes he modeled resulted in fewer days of flooding than

would have occurred without those changes. DX3015-508.

The court finds, based on Mr. Tofani’s testimony (who relied on Dr. Christensen’s

data), that the Union Township levee could have breached in 2007 in both the “but for”

and actual worlds. The court finds that when flooding could have possibly occurred

without the Corps’ System and River Changes, plaintiffs have not met their causation

burden and cannot rely on the 2007 flood to support a takings claim.

In 2010, flooding began in June. The Union Township and Holt County #15

levees overtopped and breached. The property was completely inundated with one to two

225
feet of water for approximately one month. Crops were lost. There was damage to

structures and clean-up from debris.

The government does not dispute the property flooded due to levee breaches that

caused overbank flooding and blocked drainage. DX3015-509. Based on his modeling,

which the court has rejected as unreliable, Mr. Woodbury concluded that the changes he

modeled resulted in more days of flooding than would have occurred without those

changes. DX3015-510.

The court finds, based on Mr. Tofani’s testimony (who relied on Dr. Christensen’s

data), that the Union Township levee could have breached in 2010 in both the “but for”

and actual worlds. The court finds that when flooding could have possibly occurred

without the Corps’ System and River Changes, plaintiffs have not met their causation

burden and cannot rely on the 2010 flood to support a takings claim.

In 2011, the Union Township and Holt County #15 levees overtopped and

breached. The property was inundated with two to three feet of water from mid-June

lasting over 100 days. Crops were lost, there was damage to structures, erosion of

property, land reclamation, and clean-up of debris.

For the same reasons as discussed above with regard to Property 7, plaintiff cannot

establish a taking based on the 2011 flood.

Because plaintiffs cannot establish causation for any of the flood events (2007,

2010, or 2011) their takings claim must be dismissed.

35. Property 35: Steven K. Cunningham Trust; Doris I. Cunningham
Trust

226
 This property is located at river mile 503. The property is owned in fee simple.

The plaintiffs claim a taking based on flooding in 2007, 2008, 2010, and 2011. Tr. 3360-

3465. The property is protected by the Union Township and Holt County #10 levees.

Prior to 2008, there were areas not protected by a levee. Corps construction activities in

the area include Rush Bottom Bend Chute at river mile 502 built in 2006 to 2008.

DX3015-514. The property is three miles downstream of the Thurnau mitigation site,

and there are many dikes and revetments that were notched, lowered, or allowed to

deteriorate in the vicinity of the property.

In 2007, Holt County #10 levee failed due to overtopping. Big Tarkio tie-back

levee also, failed. The entire property was inundated with one and half foot deep waters.

Flooding began in the first part of June and lasted approximately three weeks. Crops

were lost; some crops on the property were able to be harvested, but production was

adversely affected.

The government does not dispute that flooding was caused by blocked drainage,

overbank flooding, and multiple levee breaches due to heavy local rainfall leading to

extraordinarily high flows in the rivers (Tarkio and Missouri). DX3015-515. Based on

his modeling, which the court has rejected as unreliable, Mr. Woodbury concluded that

the changes he modeled resulted in fewer days of flooding than would have occurred

without those changes. DX3015-516.

The court finds, based on Mr. Tofani’s testimony (who relied on Dr. Christensen’s

data), that the Holt County #10 levee would have breached in 2007 in both the “but for”

227
and actual worlds. The court finds that when flooding would have occurred without the

Corps’ System and River Changes, plaintiffs have not met their causation burden and

cannot rely on the 2007 flood to support a takings claim.

In 2008, flooding was similar to 2007, but the levees did not fail. The height of

the water was enough to inundate the property but not breach or overtop the levees.

Flooding began in June and lasted approximately one month. Floodwaters reached up to

two and half feet. The entire crop was lost.

The government disputes that there was flooding in 2008 based on Mr.

Woodbury’s LIDAR images. DX3015-517. Based on his modeling, which the court has

rejected as unreliable, Mr. Woodbury concluded that there would have been no change in

the days of flooding with or without the changes he modeled. DX3015-519.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2008 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2010, the Union Township and Holt County #10 levees overtopped and failed.

Flooding occurred from June to mid-July and lasted approximately six weeks.

Floodwaters reached up to two feet deep in the middle of the property and one foot on the

edges. All of the crops were lost.

The government does not dispute there was flooding caused by extraordinarily

high flows in the River resulting in overbank flooding and at least one levee breach.

228
DX3015-520. Based on his modeling, which the court has rejected as unreliable, Mr.

Woodbury concluded that the changes he modeled resulted in more days of flooding than

would have occurred without those changes. DX3015-521.

The court finds, based on Mr. Tofani’s testimony (who relied on Dr. Christensen’s

data), that the Union Township levee could have breached in 2010 in both the “but for”

and actual worlds. In such circumstance, the property would have been inundated in the

“but for” world. Although, Mr. Tofani testified that the Holt County #10 levee would not

have failed in the “but for” world, the court has no way of determining whether this

would have made any difference. Thus, because flooding would have likely occurred due

to the Union Township levee breach, plaintiffs have not met their causation burden and

cannot rely on the 2010 flood to support a takings claim.

In 2011, the Union Township and Holt County #10 levees both failed due to

overtopping. Flooding began in late May and lasted through September for over 100

days. Floodwaters reached three feet and lasted three months. The entire crop was

destroyed.

For the reasons discussed above, the court has determined that plaintiffs failed to

prove causation for the 2011 flood. Plaintiffs cannot establish a takings claim based on

this flood event.

The court has considered the plaintiffs’ takings claim based on flooding in 2008

and finds plaintiffs have shown that the flooding was caused by and was the foreseeable

result of the Corps’ River and System Changes. Because the court is not convinced that

the plaintiffs have yet to establish severity based on the 2008 flood event, in the next

229
phase of the litigation, plaintiffs will have to meet the severity standard articulated in Ark.

Game & Fish III before plaintiffs will be allowed to prove the remaining elements of

their takings claim.

36. Property 36: Darwin and Jennifer Binder; Dustin and Jenny Binder;
Richard and Karen Binder; Midwest Grain Company

This property is located three miles east of river mile 502. The property is owned

in fee simple. Plaintiffs claim a taking based on flooding in 2007, 2010, and 2011. Tr.

3514-3573. The property is landward of the Union Township and Holt County #10

levees. The property is located near Rush Bottom Bend built in 2006 to 2008 and Wolf

Creek mitigation site built in 2006. DX3015-525; Def.’s Br., Table 1. Also, many dikes

and revetments have been notched, lowered, or allowed to deteriorate in this area of the

River.

In 2007, the property was inundated by floodwaters reaching six to eight feet deep

as a result of the breach in the Union Township levee. Flooding occurred in May and

lasted approximately one week. Some clean-up was required to remove debris and silt.

The entire corn crop was lost. Plaintiffs were able to replant soy beans but had a reduced

yield.

The government does not dispute that the property flooded and that the levees

breached. DX3015-526. Based on his modeling, which the court has rejected as

unreliable, Mr. Woodbury concluded that the changes he modeled resulted in fewer days

of flooding than would have occurred without those changes. DX3015-527.

230
 The court finds, based on Mr. Tofani’s testimony (who relied on Dr. Christensen’s

data), that the Union Township levee could have breached and Holt County #10 levee

would have breached in 2007 in both the “but for” and actual worlds. Thus because

flooding could would have occurred, plaintiffs have not met their causation burden and

cannot rely on the 2007 flood to support a takings claim.

In 2010, flooding was similar to 2007 in that the entire property was again

inundated with a depth of floodwaters six to eight feet as a result of the Union Township

levee breaching. Flooding occurred in June and lasted two weeks. The entire crop was

lost. There was also damage to the irrigation system. Silt and debris were removed from

the property.

The government does not dispute that the flooding in 2010 was caused by

extraordinarily high flows in the River that resulted in overbank flooding and at least one

levee breach. DX3015-528. Based on his modeling, which the court has rejected as

unreliable, Mr. Woodbury concluded that the changes he modeled resulted in more days

of flooding than would have occurred without those changes. DX3015-529.

The court finds, based on Mr. Tofani’s testimony (who relied on Dr. Christensen’s

data), that the Union Township levee could have breached in 2010 in both the “but for”

and actual worlds. In such circumstance, the property would have been inundated in the

“but for” world. Although, Mr. Tofani testified that the Holt County #10 levee would not

have failed in the “but for” world, the court has no way of determining whether this

would have made any difference. Thus, because flooding would have likely occurred due

231
to the Union Township levee breach, plaintiffs have not met their causation burden and

cannot rely on the 2010 flood to support a takings claim.

In 2011, flooding followed the breach of the Union Township levee on June 13.

The levee was overtopped. The whole area was inundated with floodwaters of at least six

to eight feet deep. Flooding lasted over 100 days from mid-June to September. The

entire crop was lost. The irrigation system was again damaged. Plaintiffs had

considerable sand on one of the farms, requiring substantial clean-up.

For the same reasons as discussed above with regard to Property 7, plaintiffs

cannot establish a taking based on the 2011 flood.

Plaintiffs are unable to establish a takings claim for any flood event claimed, and

thus their takings claim must be dismissed.

37. Property 37: Dennis and Beth Saunders

The property is located three miles east of river mile 501. The property is a

private residence owned in fee simple. The plaintiffs’ takings claim is based on flooding

in 2007, 2010, and 2011. Tr. 2165-2217.

The property is protected by the Union Township and Holt County #10 levees.

Corps construction activities in the area include the Rush Bottom Bend Chute at river

mile 502 built in 2008. DX3015-533. Many dikes and revetments in area have been

notched, lowered, or allowed to deteriorate. Flooding was caused by levee failures in all

three years.

In 2007, the property was inundated with three feet of water as a result of failures

of the Union Township and Holt County #10 levees. Flooding lasted from May 5 to May

232
18. There were significant damages to the property and home caused by the flooding,

requiring extensive repairs and clean-up. In an attempt to avoid damage from future

flooding, the living area of the home was elevated by 11 feet.

The government does not dispute that the property flooded following the levee

failure in 2007. DX3015-534. Based on his modeling, which the court has rejected as

unreliable, Mr. Woodbury concluded that there would have been no changes in the days

of flooding with or without the changes he modeled. DX3015-535.

The court finds, based on Mr. Tofani’s testimony (who relied on Dr. Christensen’s

data), that the Union Township levee could have breached in 2007 in both the “but for”

and actual worlds. In such circumstance, the property would have been inundated in the

“but for” world. Additionally, Mr. Tofani testified that the Holt County #10 levee would

have failed in the “but for” world. Thus, because flooding would have occurred due to

the Holt County #10 levee breach, plaintiffs have not met their causation burden and

cannot rely on the 2007 flood to support a takings claim.

In 2010, the entire area flooded as a result of the Union Township and Holt

County #10 levee failures. The property was inundated with four to six feet of water.

The flooding lasted from June 12 to July 31. There were significant injuries to the

property and home, requiring extensive home repairs and clean-up.

The government does not dispute the overbank flooding in 2010 was caused by a

high River level from multiple levee breaches and that local rainfall may be been an

additional factor. DX3015-536. Based on his modeling, which the court has rejected as

233
unreliable, Mr. Woodbury concluded that the changes he modeled resulted in more days

of flooding than would have occurred without those changes. DX3015-537.

The court finds, based on Mr. Tofani’s testimony (who relied on Dr. Christensen’s

data), that the Union Township levee could have breached in 2010 in both the “but for”

and actual worlds. In such circumstance, the property would have been inundated in the

“but for” world. Although, Mr. Tofani testified that the Holt County #10 levee would not

have failed in the “but for” world, the court has no way of determining whether this

would have made any difference. Thus, because flooding would have likely occurred due

to the Union Township levee breach, plaintiffs have not met their causation burden and

cannot rely on the 2010 flood to support a takings claim.

In 2011, the entire area was inundated as a result of breaches in the Union

Township and Holt County #10 levees. The property was inundated with seven feet of

water. The flooding caused plaintiffs to evacuate their home on June 1 and the

floodwaters did not recede until roughly August 1. There were significant damages to the

property and the home requiring extensive repairs and clean-up.

For the same reasons as discussed above with regard to Property 7, plaintiffs

cannot establish a taking based on the 2011 flood.

Because plaintiffs have not met their causation burden for any flood event, and

thus their takings claim is dismissed.

38. Property 38: Cunningham Farms, Inc; Steven Cunningham

This property is located a half mile east of river mile 500. The property is owned

in fee simple. Plaintiffs claim a taking based on flooding in 2007, 2008, 2010, and 2011.

234
Tr. 3360-3465. The property is protected by Holt County #10 levee. Corps construction

activities in the area include Rush Bottom Bend Chute at river mile 502 built in 2008.

DX3015-541. Excavation of the Rush Bottom Bend Chute deposited 400,000 cubic

yards of sediment into the River. Many of the dikes and revetments in the area were

notched, lowered, or allowed to deteriorate.

In 2007, Holt County #10 levee overtopped on both the north and south of the

property. The entire property was flooded up to one foot deep. Flooding began in the

first part of May and lasted approximately three weeks. Crops were lost. Some were

able to be harvested but production was adversely affected.

The government does not dispute that flooding occurred in 2007. However, Mr.

Woodbury testified that he was not certain the flooding was caused by overtopping but

could have occurred due to seepage. DX3015-542. Based on his modeling, which the

court has rejected as unreliable, Mr. Woodbury concluded that there would have been no

change in the days of flooding with or without the changes he modeled. DX3015-543.

The court finds, based on Mr. Tofani’s testimony (who relied on Dr. Christensen’s

data), that the Holt County #10 levee would have breached in 2007 in both the “but for”

and actual worlds. The court finds that because flooding would have occurred without

the Corps’ System and River Changes, plaintiffs have not met their causation burden and

cannot rely on the 2007 flood to support a takings claim.86

86
At closing argument, the government reiterated its criticism of Dr. Christensen’s gage analysis
in connection with this property and others where Dr. Christensen relied on readings from the
Rulo gage. The government argued that the analysis is questionable because Dr. Christensen
failed to take into account changes in the heights of levees post-2000 in the Kansas City District.
235
 In 2008, flooding was similar to 2007 but the levee did not fail or overtop.

Flooding began in June and lasted for one month. Floodwaters reached up to two and

half feet. The entire crop was lost.

The government does not dispute that the flooding in 2008 was due to blocked

drainage and seepage. DX3015-544. Based on his modeling, which the court has

rejected as unreliable, Mr. Woodbury concluded that there would have been no changes

in the days of flooding with or without the changes he modeled. DX3015-545.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2008 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In support, the government relies on testimony from Mr. Shumate, an engineer from the Corps
Kansas City District. Tr.8782-8783; 8864-8867. As discussed above, the court has considered
this criticism and rejected it because the government failed to provide any expert testimony to
demonstrate that the River level increases experienced are attributable to the increased heights of
the levees and not to the River Changes undertaken by the Corps. In addition, Dr. Christensen
explained that he had verified his gage analysis by making several gage comparisons and
determined that the increased River levels at high flows could be best explained by the numerous
Changes the Corps has made to create SWH and mitigation projects along the River. The court
finds that Mr. Shumate’s testimony does not directly challenge Dr. Christensen’s analysis or
undermine Dr. Hromadka’s opinions or Mr. Tofani’s analysis, which relied in large part on Dr.
Christensen’s analysis. As discussed above, the court finds that Dr. Christensen’s gage analysis
establishes that increased River heights are attributable to the Corps’ River Changes which
created a shallower and varied River bed topography, which has also changed the velocity of the
River at higher flows causing River levels to rise.
236
 In 2010, Holt County #10 levee overtopped and breached. Flooding occurred

from June to mid-July and lasted approximately six weeks. Floodwater reached up to

two and half feet. All the crops were lost.

The government does not dispute that flooding in 2010 was caused by a

combination of groundwater seepage under Holt County #10 levee, overbank flooding

that caused overtopping of the levee adjacent to the property, and blocked drainage.

DX3015-546. Based on his modeling, which the court has rejected as unreliable, Mr.

Woodbury concluded that the changes he modeled resulted in more days of flooding than

would have occurred without those changes. DX3015-547.

The court finds, based on Mr. Tofani’s testimony (who relied on Dr. Christensen’s

data), that the Holt County #10 levee would not have failed in the “but for” world. The

court finds, based on Mr. Tofani’s testimony, Dr. Hromadka’s testimony, and the WSE

chart, that the flooding in 2010 was the result of higher WSEs. The court finds that the

higher WSEs were caused by and were a foreseeable result of the Corps’ System and

River Changes which resulted in more severe flooding than would have occurred without

these Changes.

In 2011, the Union Township and Holt County #10 levees failed due to

overtopping. Floodwaters reached three feet and lasted three months. The entire crop

was again destroyed. Levee improvements were made following each flood event.

For the same reasons as discussed above with regard to Property 7, plaintiff cannot

establish a taking based on the 2011 flood.

237
 The court has considered the plaintiffs’ takings claim based on flooding in 2008

and 2010 and finds plaintiffs have shown that the flooding was caused by and was the

foreseeable result of the Corps’ System and River Changes. Because the court is not

convinced that the plaintiffs have yet to establish severity based on two flooding events,

in the next phase of the litigation, plaintiffs will have to meet the severity standard

articulated in Ark. Game & Fish III before plaintiffs will be allowed to prove the

remaining elements of their takings claim.

39. Property 39: Alma Green Trust and Marvin Green

This property is located at river mile 490.5. The property is owned in fee simple.

There is a share crop agreement. The property is protected by a private levee. The

plaintiffs claim a taking based on flooding in 2007, 2010, 2011, and 2013. Tr. 2926-

2972. Corps construction activities in the area include the Rush Bottom Bend Chute at

river mile 502 built in 2008. DX3015-565. Also many dikes at the northeast corner of

the property were notched.

In 2007, flooding occurred in June with blocked drainage and seepage. The levee

overtopped and breached in the northeast corner of the property. The property was

inundated with up to eight feet of water lasting several weeks. Crops were lost and

expenses were incurred for pumping and cleaning out ditches following the flood.

The government does not dispute that flooding in 2007 was caused by overbank

flooding that caused overtopping of the levee and blocked drainage and that groundwater

seepage may have been an additional factor. DX3015-566. Based on his modeling,

which the court has rejected as unreliable, Mr. Woodbury concluded that the changes he

238
modeled resulted in fewer days of flooding than would have occurred without those

changes. DX3015-567.

The court finds, based on Mr. Tofani’s testimony (who relied on Dr. Christensen’s

data), that flooding was due to block drainage and seepage and levee overtopping that

would not have occurred without higher WSEs. PX2554. Dr. Hromadka’s testimony and

the WSE chart show that the higher WSEs were caused by and were a foreseeable result

of the Corps’ System and River Changes which resulted in more severe flooding than

would have occurred without these Changes.

In 2010, the south levee overtopped and then breached. Flooding started in May

and lasted most of the summer. The entire property was inundated with up to nine feet of

water. Crops were lost, and there were pumping expenses and repairs.

The government does not dispute that flooding in 2010 was caused by overbank

flooding that led to overtopping of the levee which resulted in the levee breach and also

caused blocked drainage and that seepage may have been an additional factor in flooding.

DX3015-568. Based on his modeling, which the court has rejected as unreliable, Mr.

Woodbury concluded that the changes he modeled resulted in more days of flooding than

would have occurred without those changes. DX3015-569.

The court finds, based on Mr. Tofani’s testimony (who relied on Dr. Christensen’s

datat), that flooding was due to levee overtopping which led to breaching that would not

have occurred without higher WSEs. PX2554. Dr. Hromadka’s testimony and the WSE

chart show that the higher WSEs were caused by and were a foreseeable result of the

239
Corps’ System and River Changes which resulted in more severe flooding than would

have occurred without these Changes.

In 2011, flooding started in early June. The levee overtopped and breached,

inundating the entire property with up to 12 feet of water. The south levee overtopped

and then breached. Flooding lasted at least 60 days. Crops were lost, and pumping,

repair, and clean-up costs were incurred.

For the same reasons as discussed above with regard to Property 7, plaintiffs

cannot establish a taking based on the 2011 flood.

In 2013, the south levee overtopped and inundated the property with up to seven

feet of water. Flooding occurred from May to June for two weeks. Crops were lost, and

levee repair and clean-up costs were incurred.

The government does not dispute that flooding in 2013 was caused by blocked

drainage and seepage. DX3015-572. Based on his modeling, which the court has

rejected as unreliable, Mr. Woodbury concluded that there would have been no changes

in the days of flooding with or without the changes he modeled. DX3015-573.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2013 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

The court has considered the plaintiffs’ takings claim based on flooding in 2007,

2010, and 2013 and finds plaintiffs have shown that repeated flooding has interfered with

240
plaintiffs’ use and enjoyment of their property and was caused by and was the foreseeable

result of the Corps’ System and River Changes. In the next phase of the litigation the

plaintiffs will be allowed to prove the remaining elements of their takings claim.

40. Property 40: Aaron and Kelly Luce d/b/a Aaron Luce Farm Co.

This property is located approximately half a mile from river mile 490. It is

protected by Holt County #9 levee. The property is owned in fee simple and the

plaintiffs claim a taking based on flooding in 2008, 2010, and 2011. Tr. 2973-3027.

Corps construction activities in the area include dike notching.

In 2008, flooding occurred in June. Flooding was unusual and unexpected

because it was the first time that these conditions had ever been observed on this

property. The groundwater was so high that a person could sink into the ground. There

is a pond in the northwest corner of the property that would rise and fall with the

elevation of the River. Crops were lost and production was adversely affected. There

were “dead areas” of corn indicative of the high groundwater table. Holt County #9 levee

did not fail but the River was against the levee.

The government does not dispute that the flooding in 2008 was caused by blocked

drainage of the drainage ditch that runs along the east side of the property and that high

River stages may have caused increased seepage. DX3015-576. Based on his modeling,

which the court has rejected as unreliable, Mr. Woodbury concluded that the changes he

modeled resulted in fewer days of flooding than would have occurred without those

changes. DX3015-577.

241
 The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2008 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2010, flooding was in June and lasted for several weeks. Flooding was similar

to 2008 but greater. The River was against Holt County #9 levee but was higher than

2008. Following the 2010 flood, Holt County #9 levee was fortified to make it higher

and wider. Crops were lost and production was adversely affected.

The government does not dispute that flooding in 2010 was caused by blocked

drainage of the drainage ditch that runs along the east side of the property and that high

River stages may have caused increased seepage. DX3015-578. Based on his modeling,

which the court has rejected as unreliable, Mr. Woodbury concluded that the changes he

modeled resulted in fewer days of flooding than would have occurred without those

changes. DX3015-579.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart, that the

flooding in 2010 was the result of higher WSEs. The court finds that the higher WSEs

were caused by and were a foreseeable result of the Corps’ System and River Changes

which resulted in more severe flooding than would have occurred without these Changes.

In 2011, flooding began with interior blocked drainage and or seepage from a high

River in late May but the property remained dry. Sand boils were observed near the

levee. Several weeks later, Holt County #9 levee overtopped and failed in multiple

242
locations. The first breach occurred immediately southwest of the property near the

notched wing dikes. The second breach occurred a few days later on the Little Tarkio

River tie-back levee. A few exit breaches occurred along the Squaw Creek tie-back levee

and where the levee ties into Holt County #9 levee. Within 12 hours of the breaches,

8,000 acres of land were completely inundated with water. The entire property was

inundated and the floodwaters did not recede until September. The entire crop was

destroyed.

For the same reasons as discussed above with regard to Property 7, plaintiff cannot

establish a taking based on the 2011 flood.

The court has considered the plaintiffs’ takings claim based on flooding in 2008

and 2010 and finds plaintiffs have shown that the flooding was caused by and was the

foreseeable result of the Corps’ System and River Changes. Because the court is not

convinced that the plaintiffs have yet to establish severity based on two flooding events,

in the next phase of the litigation, plaintiffs will have to meet the severity standard

articulated in Ark. Game & Fish III before plaintiffs will be allowed to prove the

remaining elements of their takings claim.

41. Property 41: Buffalo Hollow Farms, Inc.

This property is located at river mile 478. The property is owned in fee simple.

The plaintiff claims a taking based on flooding in 2007, 2008, 2010, 2011, 2013, and

2014. Tr. 2290-2366. The property is protected by a private levee. Corps construction

activities near the property include the Wolf Creek Bend channel widening at river mile

243
481 in 2006 and dike notching at river miles 492, 490, and 487, starting in 1974.

DX3015-583.

In 2007, the flooding occurred from May 7 to May 15 and again from May 24 to

May 25. The flooding covered approximately 25 percent of the property inside the levee

and all but two or three acres outside the levee. The River was three to four feet high

against the levee and the water depths inside the levee ranged from “spongy” soil to two

feet. Crops were lost, there were reduced yields, and pumping expenses were incurred.

The government does not dispute that flooding in 2007 was caused by blocked

drainage of the creek that drains the property and that high River stages contributed to the

flooding and may have also caused seepage. DX3015-584. Based on his modeling,

which the court has rejected as unreliable, Mr. Woodbury concluded that the changes he

modeled resulted in fewer days of flooding than would have occurred without those

changes. DX3015-585.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2007 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2008, flooding occurred from May 30 to June 21. The flooding covered

approximately 50 percent of the property inside the levee and all but two to three acres

outside the levee. The River was four to five feet high against the levee and the water

244
depths inside the levee ranged from saturated soil to one to two feet deep. Crops were

lost, yields were reduced, and plaintiffs incurred pumping expenses and clean-up costs.

The government does not dispute that flooding in 2008 was caused by blocked

drainage from the creek that drains the property and that high River stages caused

seepage. DX3015-586. Based on his modeling, which the court has rejected as

unreliable, Mr. Woodbury concluded that there would have been no change in the days of

flooding with or without the changes he modeled. DX3015-587.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2008 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2010, flooding occurred from June 11 to August 20. Flooding covered about 75

percent of the property inside the levee and the entire property that was outside the levee.

The River was four to five feet against the levee and the water depths inside the levee

ranged from saturated soils to three feet deep. Crops were lost, yields were reduced

pumping expenses and debris clean-up costs were incurred.

The government does not dispute that flooding in 2010 was caused by blocked

drainage and that a high River contributed to seepage. DX3015-588. Based on his

modeling, which the court has rejected as unreliable, Mr. Woodbury concluded that the

changes he modeled resulted in more days of flooding than would have occurred without

those changes. DX3015-589.

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 The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2010 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2011, flooding occurred from June 20 to September 25. The levee overtopped

and multiple breaches occurred, inundating the entire property with eight to ten feet of

water with a current crossing the entire property. The south end of the levee overtopped

on June 21, the mainline overtopped on June 27, and mainline held for three to four days

of overtopping before breaching. There were significant scour holes ranging from four

acres to 18 acres. Approximately half an acre of the River bank was lost due to erosion.

Some scour holes measured 50 to 60 feet deep. There were erosion of the top soil and

levee repairs. There were sand deposits across the property three to five feet deep and

plaintiff removed 500,000 to 700,000 cubic yards of sand from the property inside the

levee. The plaintiff hauled about 1 million tons of dirt from the bluffs to fill the scour

holes and repair the levees. The entire crop was lost and there was extensive debris.

For the same reasons as discussed above with regard to Property 7, plaintiff cannot

establish a taking based on the 2011 flood.

In 2013, flooding occurred from late May to early June. Almost all of the acres

outside the levee were flooded with overbank flooding, and seepage and/or blocked

drainage occurred inside the levee. Crops were lost. The River was about one to two feet

high against the levee.

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 The government does not dispute that overbank flooding in 2013 was caused by

high River stages. DX3015-592. Based on his modeling, which the court has rejected as

unreliable, Mr. Woodbury concluded that there would have been no change in the days of

flooding with or without the changes he modeled. DX3015-593.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2013 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2014, the flooding was similar to 2013.

The government does not dispute flooding in 2014 Riverward of the levee was

caused by a high River that caused overbank flooding. DX3015-594. Based on his

modeling, which the court has rejected as unreliable, Mr. Woodbury concluded that there

would have been no change in the days of flooding with or without the changes he

modeled. DX3015-595.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2014 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

The court has considered the plaintiff’s takings claim based on flooding in 2007,

2008, 2010, 2013, and 2014 and finds Buffalo Hollow Farms, Inc., has shown that

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repeated flooding has interfered with plaintiff’s use and enjoyment of its property and

was caused by and was the foreseeable result of the Corps’ System and River Changes.

In the next phase of the litigation the plaintiff will be allowed to prove the remaining

elements of its takings claim.

42. Property 42: Scott Rouse and Scott Ryan Rouse Family Trust

This property is located approximately one and a half miles east of river mile 460.

The plaintiffs own the property in fee simple. They claim a taking based on flooding in

2010 and 2011. Tr. 3478:9-3513:23. The property is protected by levee MRLS 476-L.

Corps construction activities near the property include (1) the Worthwine revetment

lowering near the upstream end of the property built in 2004, (2) the Worthwine Chute

near the upstream end of the property built in 2006, and (3) dike notching. DX3015-597.

According to Dr. Hromadka, the Corps deposited more than 400,000 cubic yards of

sediment in the River and brought the River 1,000 feet closer to the levee when it

constructed the Worthwine Chute.

In 2010, flooding started in early June and lasted approximately 30 days.

Floodwater depth varied from saturated soil to three feet. 250 to 300 acres were flooded.

The plaintiffs observed a high River level for several weeks before seeing “clean”

seepage water originating near the Worthwine Island MRRP site flowing down the road

towards their property. The plaintiffs observed that the seepage originated south of the

property near the levee. The water began to break back in through the drainage ditches.

The plaintiffs observed sand boils approximately 2,000 feet inland of the MRLS 476-L

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levee which they had never seen before. Crops were lost and production was adversely

affected.

The government does not dispute that flooding in 2010 was caused by either

seepage or a combination of seepage and blocked drainage caused by a high River.

DX3015-598. Based on his modeling, which the court has rejected as unreliable, Mr.

Woodbury concluded that the changes he modeled resulted in fewer days of flooding than

would have occurred without those changes. DX3015-599.

The court finds, based on Dr. Hromadka’s testimony and the WSE chart and Mr.

Tofani’s testimony, that the flooding in 2010 was the result of higher WSEs. The court

finds that the higher WSEs were caused by and were a foreseeable result of the Corps’

System and River Changes which resulted in more severe flooding than would have

occurred without these Changes.

In 2011, flooding began in late May and lasted approximately 100 days until

September. Approximately 480 acres of the property were flooded similar to 2010;

however, the damage was more extensive. Floodwater depth varied from saturated soil to

approximately six feet deep. “Clean” water again backed up through the drainage ditches

and water flowed from the Worthwine Island MRRP site toward the property. Sand boils

were again observed near Worthwine Island. The Corps brought in two large pumps to

pump water out of the levee near the drainage gates. The basement of plaintiffs’ home

took on water, but they successfully used a sump pump to evacuate it. Crops were lost

and production was adversely affected.

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 For the same reasons as discussed above with regard to Property 7, plaintiff cannot

establish a taking based on the 2011 flood.

The court has considered the plaintiffs’ takings claim based on flooding in 2010

and finds plaintiffs have shown that the flooding was caused by and was the foreseeable

result of the Corps’ System and River Changes. Because the court is not convinced that

plaintiffs have yet to establish severity based on the 2010 flood, in the next phase of the

litigation, plaintiffs will have to meet the severity standard articulated in Ark. Game &

Fish III before plaintiffs will be allowed to prove the remaining elements of their takings

claim.

43. Property 43: Lanny and Ramona Frakes87

This property is located approximately one mile east of river mile 421. The

property is owned in fee simple. Plaintiffs claim a taking based on flooding in 2008,

2010, and 2011. Tr. 3850-3938. Corps construction activities near the property include:

(1) Benedictine Bottoms SWH from river miles 427 to 424 built in 2004; (2) Dalby

Bottoms SWH south of the property; and (3) three chutes between river miles 415 to 418

all built by 2013. DX3015-603.

In 2008, the River was high requiring sandbagging of the PL 84-99 levee. Water

trickled over the levee. Notwithstanding extensive sandbagging efforts, the water

overtopped the levee and then ran south onto the property. Flooding also caused the

87
Mr. Frakes is Vice Chair and VP of the Missouri Levee & Drainage District Association. He
testified to certain changes to the River near his property. He testified that his drainage culverts
are now blocked at a lower River reading at the St. Joe gage due to aggradation in the area and
that the River rises much more quickly than it did before 2004.
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Sugar Lake drainway and the farm drainage ditch network to back up. The flooding

lasted approximately one month in June. The majority of the property experienced

flooding in 2008 ranging from saturated soil to nearly three feet of water. Crops were

lost on 60 to 70 percent of the property and the remaining crop production was adversely

affected.

The government does not dispute that some flooding that occurred in 2008 was

caused by elevated flows in the River, but it does not acknowledge levee overtopping and

instead attributes flooding due to blocked drainage and possible seepage. DX3015-604.

Based on his modeling, which the court has rejected as unreliable, Mr. Woodbury

concluded that the changes he modeled resulted in fewer days of flooding than would

have occurred without those changes. DX3015-605.

The court finds, based on Mr. Tofani’s testimony (who relied on Dr. Christensen’s

data), that flooding was due to levee overtopping that would not have occurred without

higher WSEs. PX2554. Dr. Hromadka’s testimony and the WSE chart show that the

higher WSEs were caused by and were a foreseeable result of the Corps’ System and

River Changes which resulted in more severe flooding than would have occurred without

these Changes.

In 2010, the River overtopped the PL 84-99 levee similar to 2008. Again, despite

extensive sandbagging efforts the flooding ensued. The Sugar Lake drainway and Sugar

Creek again backed up causing seepage and blocked interior drainage just like in 2008.

The duration of flood was longer and the volume of water was greater than in 2008.

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Flooding lasted approximately six weeks starting in early June. Crops were lost on 60 to

70 percent of the property and crop production was adversely impacted.

The government does not dispute that some flooding occurred in 2010 that was

caused by elevated flows in the River which resulted in blocked drainage and possibly

seepage. DX3015-606. Based on his modeling, which the court has rejected as

unreliable, Mr. Woodbury concluded that the changes he modeled resulted in fewer days

of flooding than would have occurred without those changes. DX3015-607.

The court finds, based on Mr. Tofani’s testimony (who relied on Dr. Christensen’s

data), that flooding was due to levee overtopping that would not have occurred without

higher WSEs. PX2554. Dr. Hromadka’s testimony and the WSE chart show that the

higher WSEs were caused by and were a foreseeable result of the Corps’ System and

River Changes which resulted in more severe flooding than would have occurred without

these Changes.

In 2011, the River breached the PL 84-99 levee at multiple locations causing the

interior area to be inundated with floodwaters including the representative property. One

of the levee breaches was approximately due west of Rushville, Missouri, on the mainline

levee, and was an entry breach. The property was completely inundated with four to ten

feet of water. The entire crop was lost and the barns and outbuildings were destroyed.

For the same reasons as discussed above with regard to Property 7, plaintiff cannot

establish a taking based on the 2011 flood.

The court has considered the plaintiffs’ takings claim based on flooding in 2008

and 2010 and finds plaintiffs have shown that the flooding was caused by and was the

252
foreseeable result of the Corps’ System and River Changes. Because the court is not

convinced that the plaintiffs have yet to establish severity based on two flooding events,

in the next phase of the litigation, plaintiffs will have to meet the severity standard

articulated in Ark. Game & Fish III before plaintiffs will be allowed to prove the

remaining elements of their takings claim.

44. Property 44: George (Deceased) and Patricia Hildebrandt

This property is at river mile 408.5. The plaintiffs own the property in fee simple.

They claim a taking based on flooding in 2007, 2008, 2010, and 2011. Tr. 3677-3701;

Tr. 3701-3721. Most of the property is protected by a private levee connected to the

Grape-Bollin-Schwartz non-federal levee. Additionally, the property is protected by

federal levee NLD to the west. DX3015-611. It is immediately downstream of the Oak

Mills Bend mitigation site. There are many notched dikes in the area.

In 2007, flooding started in May and lasted less than one month. The levee

overtopped and floodwaters reached four to five feet in the house and another two to

three feet higher in the fields. Crops were lost and the homestead was damaged.

The government does not dispute that flooding in 2007 was caused by elevated

flows in the River that resulted in overtopping of the private levee surrounding the

property. DX3015-612. Based on his modeling, which the court has rejected as

unreliable, Mr. Woodbury concluded that the changes he modeled resulted in fewer days

of flooding than would have occurred without those changes. DX3015-613.

The court finds, based on Mr. Tofani’s testimony (who relied on Dr. Christensen’s

data), that flooding was due to levee overtopping that would not have occurred without

253
higher WSEs. PX2554. Dr. Hromadka’s testimony and the WSE chart show that the

higher WSEs were caused by and were a foreseeable result of the Corps’ System and

River Changes which resulted in more severe flooding than would have occurred without

these Changes.

In 2008, the private levee overtopped. Floodwaters reached five to six feet in the

house. Crops were lost and the homestead was damaged.

The government does not dispute that, like 2007, the flooding in 2008 was caused

by elevated flows in the River that caused the private levee surrounding the property to

overtop. DX3015-614. Based on his modeling, which the court has rejected as

unreliable, Mr. Woodbury concluded that the changes he modeled resulted in fewer days

of flooding than would have occurred without those changes. DX3015-615.

The court finds, based on Mr. Tofani’s testimony (who relied on Dr. Christensen’s

data), that flooding was due to levee overtopping that would not have occurred without

higher WSEs. PX2554. Dr. Hromadka’s testimony and the WSE chart show that the

higher WSEs were caused by and were a foreseeable result of the Corps’ System and

River Changes which resulted in more severe flooding than would have occurred without

these Changes.

In 2010, the levee overtopped with flooding similar to 2007 and 2008. The entire

crop and family home were destroyed.

The government does not dispute that flooding in 2010 was caused by elevated

flows in the River that overtopped the private levee surrounding the property. DX3015-

616. Based on his modeling, which the court has rejected as unreliable, Mr. Woodbury

254
concluded that the changes he modeled resulted in fewer days of flooding than would

have occurred without those changes. DX3015-617.

The court finds, based on Mr. Tofani’s testimony (who relied on Dr. Christensen’s

data), that flooding was due to levee overtopping that would not have occurred without

higher WSEs. PX2554. Dr. Hromadka’s testimony and the WSE chart show that the

higher WSEs were caused by and were a foreseeable result of the Corps’ System and

River Changes which resulted in more severe flooding than would have occurred without

these Changes.

In 2011, the property was inundated when the private levee breached. There were

seven to ten feet of water on the property. Scour holes and sand deposits were left on the

property.

For the same reasons as discussed above with regard to Property 7, plaintiff cannot

establish a taking based on the 2011 flood.

The court has considered the plaintiffs’ takings claim based on flooding in 2007,

2008, and 2010 and finds plaintiffs have shown that repeated flooding has interfered with

plaintiffs’ use and enjoyment of their property and was caused by and was the foreseeable

result of the Corps’ System and River Changes. In the next phase of the litigation the

plaintiffs will be allowed to prove the remaining elements of their takings claim.

V. Conclusion

For the reasons stated, the court concludes as follows:

(1) The following plaintiffs have established causation, foreseeability and severity,

and their takings claims will proceed to the next phase of the litigation where the court

255
will decide whether the United States has any defenses to these plaintiffs’ claims and

other legal and factual issues associated with proving entitlement to just compensation

and if entitlement is established the appropriate amount:

 Blodgett Farms, LLC (Property 13)[for flooding in 2010, 2013, and 2014]

 Anthony and Mary Salter and Franklin and Cheryl Salter (Property 15) [for
flooding in 2008, 2010, 2013, and 2014]

 George Neale Farm, LLC, Neale Farms, Inc., and Jeff and Kelli Shaner (Property
16) [for flooding in 2008, 2010, and 2014]

 Robert D. Adkins, Sr., and Betty Adkins, Robert D. Adkins, Jr., Ken Adkins, and
Robert Adkins & Sons Partnership (Property 17) [for flooding in 2007, 2008, and
2010]

 Husz Farm Corp., K & J Husz, Inc., Dale and Sheryl Husz and Keith, and Julia
Husz (Property 18) [for flooding in 2007, 2008, 2010, and 2014]

 David and Kimberly Sieck and Daniel Sieck (Property 20) [for flooding in 2008,
2010, and 2013]

 Payne Valley Farms, LLC (Property 25) [for flooding in 2007, 2008, 2010, and
2013]

 Gary Schemmel (Property 27) [for flooding in 2008, 2010, and 2014]

 L & H Investments (Property 29) [ for flooding in 2008, 2010, 2013, and 2014]

 Garst Farms, Inc., Charles L. Garst Living Trust, and Charles and Connie Garst
(Property 30) [for flooding in 2007, 2008, and 2010]

 Ideker Farms, Inc. (Property 33) [for flooding in 2007, 2008, 2010, 2013, and
2014]

 Alma Green Trust and Marvin Green (Property 39) [for flooding in 2007, 2010,
and 2013]

 Buffalo Hollow Farms, Inc. (Property 41) [for flooding in 2007, 2008, 2010, 2013,
and 2014]

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  George and Patricia Hildebrandt (Property 44) [for flooding in 2007, 2008, and
2010]

(2) The following plaintiffs have established causation and foreseeability but have

not yet established severity. In the next phase of the litigation, these plaintiffs will be

required to establish severity in addition to responding to the government’s defenses and

proving entitlement to just compensation, and if entitlement is established, the

appropriate amount:

 Robert L. Roth and BCR Properties Limited Partnership (Property 19) [for
flooding in 2008 and 2010]

 Merril Sargent, Deceased and Ron and Dale Sargent (Property 21) [for flooding in
2008 and 2014]

 Roth, Inc., Steven G. Roth and BCR Properties Limited Partnership (Property 22)
[for flooding in 2008 and 2010]

 Leo Ettlemen (Property 23) [for flooding in 2008 and 2010]

 KMJ Farms, Inc. and Brian and Kelly Johnson (Property 24) [for flooding in 2007
and 2013]

 Woltemath Farm, Inc., Hi-Tech Farms, Inc., and Robert Woltemath (Property 26)
[for flooding in 2008 and 2010]

 Barnes Atchison, MO, LLC and Barnes Holt MO, LLC (Property 28) [for flooding
in 2007 and 2010]

 Griffin Farms Partnership (Property 31) [for flooding in 2008 and 2010]

 Edward and Diana Foral (Property 32) [for flooding in 2010 and 2013]

 Steven K. Cunningham Trust and Doris I Cunningham Trust (Property 35) [for
flooding in 2008]

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  Cunningham Farms, Inc. and Steven Cunningham (Property 38) [for flooding in
2008 and 2010]

 Aaron Luce Farms Co. and Aaron and Kelly Luce (Property 40) [for flooding in
2008 and 2010]

 Scott Rouse and Scott Ryan Rouse Family Trust (Property 42) [for flooding in
2010]

 Lanny and Ramona Frakes (Property 43) [for flooding in 2008 and 2010]

(3) The following plaintiffs have failed to establish causation and therefore their

claims are subject to dismissal:

 Karen G. Hogue Trust and Peter and Karen Hogue (Property 1) [for flooding in
2011]

 Peter and Judy Masset (Property 2) [for flooding in 2011]

 Eric Moritz, Southport Marian, LLP, and Capsco Entertainment, LLP d/b/a The
Pier Bar and Grill (Property 3) [for flooding in 2011]

 James and Sharon Forney (Property 4) [for flooding in 2011]

 Andersen Family Farms Partnership and Engra Andersen (Property 5) [for
flooding in 2011]

 Paul and Debra Dailey (Property 6) [for flooding in 2011]

 Andersen Family Farms Partnership and Bryce L. Andersen (Property 7) [for
flooding in 2011]

 Omaha Tribe of Nebraska (Property 8) [for flooding in 2011]

 Tob-Isle, Inc. (Property 9) [for flooding in 2011]

 Richard Archer (Property 10); [for flooding in 2011]

 Scott and Susan Olson and Randy and Patricia Olson (Property 11) [for flooding
in 2011 and 2014]

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 David and Elizabeth Brainard (Property 12) [for flooding in 2011]

 Dennis and Janis Connealy and Quentin and Jill Connealy (Property 14) [for
flooding in 2011]

 Drewes Farms, Inc., Eddie Drewes, David Drewes, Rita K. Drewes Revocable
Trust, and Robert W. Drewes Revocable Trust (Property 34) [for flooding in 2007,
2010, and 2011]

 Darwin and Jennifer Binder and Dustin and Jenny Binder, Richard and Karen
Binder, and Midwest Grain Company (Property 36) [for flooding in 2007, 2010,
and 2011]

 Dennis and Beth Saunders (Property 37) [for flooding in flooding in 2007, 2010,
and 2011]

s/Nancy B. Firestone
NANCY B. FIRESTONE
Senior Judge

259