A long opinion (73 pages) from the U.S. Court of Federal Claims in St. Bernard Parish Gov't v. United States, No. 05-1119L (May 1. 2015), and it is worth reading in its entirety (there are even photos and maps embedded). But here's the short version:
In Arkansas Game & Fish, the United States Supreme Court held that “[f]looding cases, like other takings cases, should be assessed with reference to the ‘particular circumstances of each case,’ and not by resorting to blanket exclusionary rules.” 133 S. Ct. at 521; see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 427 (1982) (“[N]o ‘set formula’ exists to determine, in all cases, whether compensation is constitutionally due for a [G]overnment restriction on property. Ordinarily, the Court must engage in ‘essentially ad hoc, factual inquiries.’” (quoting Penn Central, 438 U.S. at 124); Ridge Line, 346 F.3d at 1352 (“A determination of whether a taking . . . has occurred is a question of law based on factual underpinnings.”) (emphasis added).Weighing all the evidence in this case, the court has determined that Plaintiffs established that the Army Corps’ construction, expansions, operation, and failure to maintain the MR-GO caused subsequent storm surge that was exacerbated by a “funnel effect” during Hurricane Katrina and subsequent hurricanes and severe storms, causing flooding on Plaintiffs’ properties that effected a temporary taking under the Fifth Amendment to the United States Constitution.
Slip op. at 73.
The court ended its opinion with this gem, a not-so-subtle piece of advice to the Corps: "In light of the United States Supreme Court’s recent decision in Arkansas Game & Fish and the weight of the evidence in this case, it is the considered view of the undersigned judge that further litigation in this matter is not in the interest of the Army Corps and will not serve the interests of justice. It is time for this final chapter of the MR-GO story to come to an end." Slip op. at 74.
Let's see if the Corps takes Her Honor's advice.
St. Bernard Parish Gov't v. United States, No. 05-1119L (Fed. Cl. May 1, 2015)
