It's been a long week, and it's Friday with a filing coming up. So we're not going to spend a lot of time digesting the Federal Circuit's opinion in Alford v. United States, No 19-1678 (June 19, 2020). Plus, it is a short one (11 pages) that makes one major point.
Short story: after an unusual amount of rain, to save a levee from a predicted 95% chance of breach, the Corps of Engineers decided to raise the normal levels of Eagle Lake, causing damage to the plaintiffs' lakefront properties. Their land was flooded for three months. The CFC agreed this was a taking, and awarded $168,000 in just compensation.
The Federal Circuit reversed (opinion by Judge Dyk, are you that surprised?). The court held that on the whole, the property owners should be grateful that the Corps flooded their lands, because the "relative benefits" doctrine. If the government flooding isn't greater than that which would have occurred if the government had not acted, no taking. See United States v. Sponenbarger, 308 U.S. 256 (1939).
The Federal Circuit concluded that if the Corps hadn't flooded the plaintiffs' properties to save the levee, a levee breach would have resulted in even worse flooding:
Even assuming that this narrow focus was correct, the plaintiffs make no claim that they would have been better off if the government had allowed the levee to breach. The government’s uncontested evidence showed that, in the event of a breach of the levee, the water level of Eagle Lake would have far exceeded that caused by the Corps’ intentional flooding. Each of the plaintiffs suffered considerably less damage due to the government’s planned flooding of Eagle Lake than if the levee had breached. The Claims Court expressly found that the plaintiffs had directly benefitted from the government’s action. The Claims Court found that it was “certainly true” that the flood protection offered by the levee and Control Structure “benefitted the plaintiffs.” J.A. 3. Absent government intervention, “the likelihood of [a] breach [of the levee] was over 95%.” J.A. 2. “If the levee had broken,” the “[p]laintiffs’ propert[ies] would have been totally inundated” and would have “suffered more serious damage than they actually did.” J.A. 3. “[T]he plaintiffs would have been far worse off . . . .” Id. Under the Claims Court’s findings, the benefit of the government action, with respect to preventing a breach of the levee, outweighed the damage caused by the government’s flooding of Eagle Lake.
Slip oop. at 8-9 (footnote omitted).
The court rejected the CFC's analysis, which looked a lot like a "special benefits" approach: if the benefits to the general public were substantial, it didn't matter whether the plaintiffs also benefitted. Slip op. at 10-11 ("The relative benefits doctrine considers only government actions directed to the particular property at issue and considers only government activities directed to mitigating the type of problem that caused the damage.").
The plaintiffs would have been "far worse off" if the Corps had not acted. Be thankful you ingrates!
Alford v. United States, No. 19-1678 (Fed. Cir. June 19, 2020)
