“Whether the CFC’s judgment that the United States is liable for a taking of private property should be reversed on any of the following grounds: 1. The CFC applied an incorrect legal standard for determining whether the entirety of the government’s action is the cause-in-fact of the flooding damage about which Plaintiffs complain. 2. The CFC erred in holding that the United States could not defend against the alleged takings by showing that the relative benefits to Plaintiffs’ property from the Missouri River Mainstem System of Reservoirs (System), associated federal levees, and the Bank Stabilization and Navigation Project (Navigation Project, or the BSNP) outweigh any detriments. 3. The CFC misapplied the factors from Arkansas Game and Fish Commission v. United States, 568 U.S. 23 (2012), to conclude that the United States was responsible for a taking-by-flooding of Plaintiffs’ property. 4. The CFC erroneously selected a date of taking corresponding only to an administrative cut-off to assist with discovery and unrelated to any physical events regarding Plaintiffs’ claims.”
1. “The Court of Federal Claims did not err in applying Hardwicke and Miller to this case.”
2. “Plaintiffs respond that the relative benefits doctrine is inapplicable because, inter alia, it does not take into account the benefits conferred by all government actions. . . . We agree with Plaintiffs.”
3. “We simply reinforce the principle that the permanent appropriation of a flowage easement is ‘clear enough’ to be on the side of a per se taking and not a trespass.”
4. “When a reasonable plaintiff knew or should have known that his claim stabilized does not need to correspond identically with the physical event giving rise to liability.”
