Three cases being argued in November at the Federal Circuit attracted amicus briefs. One of those cases attracted four amicus briefs. That case is Ideker Farms, Inc. v. United States. It concerns the federal government’s liability for taking private property. Specifically, in this case, the Federal Circuit will review the conclusion of the Court of Federal Claims that the government’s action was the cause-in-fact of flooding damage and that, as a result, a taking-by-flooding occurred. The government appeals the CFC’s judgment, while Ideker Farms cross-appeals. This is our argument preview.
In its principal brief, the United States makes three points. First, it argues, “[t]he CFC erred by applying the wrong legal standard for proving causation in a takings case.” This is so, says the government, because the CFC is “required to consider the entirety of the government’s action and . . . the Plaintiffs had made no attempt to prove that flooding on their properties was worse than would have occurred but for the presence” of the government’s activities. The government contends that, “by ignor[ing] the flooding that Plaintiffs would have experienced between 2007 and 2019 without the other governmental action,” the CFC “improperly provide[d] [the] Plaintiffs with a private property right to the public benefits of government provided flood protection and incorrectly transform[ed] the government into an insurer against flooding.” Second, the government argues, “the CFC committed several errors when evaluating the factors that the Supreme Court . . . has held courts must consider when determining whether a taking-by-flooding has occurred.” Finally, it contends, “the CFC erred in determining the date of the taking,” which resulted in “the CFC’s failure to hold Plaintiffs claims time-barred and also in an incorrect valuation date used to calculate the amount of compensation owed to Plaintiffs.”
Ideker Farms, in its principal and response brief filed on behalf of itself and others, first argues “[t]he CFC correctly concluded that the government caused the flooding on plaintiffs’ properties.” According to Idekar Farms, this is so because, “where the government first takes an action that reduces the risk of flooding and later takes an action that increases the risk of flooding, the baseline for assessing causation depends on whether the later, risk-increasing action was ‘contemplated’ at the time of the prior, risk-reducing action.” Second, it argues, “the CFC’s ruling does not require the government to act as a universal insurer against flooding” because the “ruling reflects the uncontroversial principle that when the government intentionally or foreseeably causes flooding to accomplish the public goal of environmental protection, the government cannot avoid paying just compensation simply because it long ago conferred some benefit on a plaintiff’s property.” Third, as to the government’s contention that the plaintiffs’ claims were untimely, Ideker Farms argues that “a takings claim does not accrue until ‘the situation becomes stabilized’ and ‘the consequences of inundation have so manifested themselves that a final account may be struck.'” As for its cross appeal, Ideker Farms asserts that the “CFC erred in refusing to award damages for crop losses caused by the . . . flooding while the taking was stabilizing” and “also erred in rejecting plaintiffs’ takings claims with respect to the severe flooding on their properties in 2011.”
The United States, in its response and reply brief, argues the CFC “erroneously failed to account for the extraordinary and undisputed improvements to Plaintiffs’ properties . . . by (1) refusing to use a baseline for analyzing causation that compares the flooding Plaintiffs actually experienced to flooding that would have occurred without the [improvements], and (2) precluding the government from presenting evidence that the relative benefits of the [improvements] outweigh asserted detriments.” The government also argues plaintiffs’ contention that “reversal would result in ‘outrageous’ scenarios where the government floods cities with impunity” is not persuasive because “there are protections against such a result short of compensating . . . for every change in regulation that may result in a reduction of . . . profits.” Regarding the cross appeal, the government argues any crops “destroyed before the date of taking . . . result from trespasses for which the Tucker Act has not waived the government’s sovereign immunity.” Furthermore, according to the government it was “reasonable for the CFC to reject [expert] testimony that the record flooding in 2011 could be attributed to the Corps’ post-2004 actions, rather than to the record runoff and the Corps’ efforts to preserve” the Missouri River Reservoir System.
Ideker Farms, in turn, in its reply brief makes two points. First, it argues “the CFC’s refusal to award compensation during the stabilization period—measured, reasonably enough, as the crops destroyed in the floods caused by the government—cannot be reconciled with the fundamental principle that ‘just compensation includes a recovery for all damages, past, present and prospective.’” Second, it asserts, “the CFC’s rejection of plaintiffs’ claims for the destructive 2011 flooding rests on flawed reasoning” because “the increased severity of 2011 flooding was directly and foreseeably caused by the same package of government changes that caused flooding in other years.”
The American Farm Bureau Federation submitted an amicus brief to the court in favor of Ideker Farms. The Bureau argues “[t]he CFC correctly found that the government took Plaintiffs’ property and that Plaintiffs were entitled to just compensation for the taking.” Moreover, it asserts, “[t]he CFC erred . . . by excluding the value of Plaintiffs’ destroyed crops from its determination of just compensation.”
The Chamber of Commerce of the United States of America also submitted an amicus brief in favor of Ideker Farms. It argues that the “crux of the government’s position is that governments at all levels . . . can avoid paying compensation for taking real property rights if, decades earlier, they took action increasing the value of the property in question—even where the later taking was not contemplated at the time of the original improvements.” Moreover, the Chamber contends, if the court were to accept the government’s argument, it “would sharply undermine the stability, fairness, and predictability of the rules protecting private property, on which depend a wide range of investment and economic activity by American businesses.”
The Cato Institute and Mountain States Legal Foundation likewise submitted an amicus brief in favor of Ideker Farms. Their brief argues that the government is wrong to argue that “its help in creating plaintiffs’ farmland provides backward-looking compensation for its later taking of a portion of those lands through artificial flooding.” They assert that “[l]ongstanding takings jurisprudence demands that the plaintiffs’ investment-backed expectations of what the federal government would do with respect to their land must take precedence.”
The Buckeye Institute submitted an amicus brief also in favor of Ideker Farms. It argues that the Takings Clause establishes “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.'” Further, it asserts, “the Just Compensation provision of the Takings Clause is ‘designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'”
This case will be argued on Tuesday, November 1. We will report on any developments.