Here's the amici brief filed late last week on behalf of a lot of us (me included, check it out) in the MR-GO case we've been following closely ever since it was filed in the Court of Federal Claims.
That court concluded the Corps of Engineers built MR-GO (the Mississippi River-Gulf Outlet) shipping channel, essentially a shortcut to New Orleans from the Gulf of Mexico, but then, despite its own knowledge that its lack of channel maintenance over the years would amplify the "hurricane attack" (the Corps' words, not ours) when the next big one hit, the Corps did not respond. Well, as we all know, Katrina smashed the Gulf Coast in 2005, and sure enough, MR-GO was like a hurricane bowling alley, allowing the storm surge to barrel up the channel, amplifying its effect. New Orleans' Ninth Ward and St. Bernard Parish were the pins at the end of MR-GO: the surge breached the levee, which by all accounts would have held had MR-GO not amplified its effect. (Just ask the Dutch about the engineering behind polders, and you can easily understand why MR-GO had the opposite effect; here's a pic of an Archimedes' screw on a Dutch polder, in case you are curious what one looks like.)
The CFC's taking and just compensation judgments were reversed by the Federal Circuit. Concluding that government inaction could never be a taking, the court imposed a categorical bar to takings liability if the invasion of the plaintiff's property, although plainly caused by the government, could be classified as inaction and not an affirmative act. Here, the Federal Circuit held, the Corps merely failed to maintain MR-GO. End of the takings story.
Well, if nothing else has been clear about the U.S. Supreme Court's takings doctrine over the years, it is that categorical rules aren't exactly favored. At leas since the time the Court rejected "blanket exceptions" to takings liability in Kaiser Aetna v. United States, 444 U.S. 164 (1979), if you understood nothing else about takings doctrine it is that bright line rules are not the norm, especially when it comes to bright line rules of no liability. In Arkansas Game and Fish -- another flood takings case up from the Federal Circuit -- the Court reaffirmed the rule that there aren't many bright line no liability rules.
So here we are, back again trying to convince a lower court that yes, the Supreme Court really does mean it.
The problem as we see it is that the Federal Circuit panel was shoehorning the MR-GO case (and others) into either a "takings" or "tort" basket. They are one or the other, with flooding that results from what the court views as negligence resulting only in tort liability (from which it is likely immune under the FTCA, while affirmative conduct that leads to the very same damage can be a taking (if only reluctantly). Listen to the oral arguments and see if that vibe does not come through clearly.
We joined the amici brief supporting the cert petition because takings vs tort and action vs inaction are not helpful categorizations in this (or really any) case. The focus should be on whether the flooding was the "natural consequence" of the government's conduct, followed by an analysis of whether the flooding was made worse than it would have been in the absence of government action (i.e, your property would have flooded to this extent even if the government had done nothing in the past). As our brief argues, this isn't some isolated case, but is from the Federal Circuit, the federal government's "takings court" -
The Federal Circuit’s action versus inaction dichotomy is a new lens through which to view private property rights and the Takings Clause. Judge Dyk’s opinion undermines existing property rights and attempts to craft a novel argument by which the government may escape its constitutional obligation to justly compensate owners when it takes their property. This unsettles existing property interests and expectations.
Br. at 22.
A big thanks to Thor Hearne and his Federal Takings team for taking the lead on this brief. Now we wait.
Brief for Amici Curiae Cato Institute, et al, St. Bernard Parish Gov't v. United States, No. 18-359 (Oct. 1...
