Barnes v. United States, 878-71

• Decision Date: 09 July 1976
• Docket Number: 237-73 and 340-73.,No. 878-71,90-73,878-71
• Citation: 538 F.2d 865
• Parties: Duane BARNES et al. v. The UNITED STATES. Leonard NIELSEN v. The UNITED STATES. Louis J. SVOBODA and Jacqueline G. Svoboda v. The UNITED STATES. Alvin S. HANZLIK et al. v. The UNITED STATES.
• Court: U.S. Claims Court

538 F.2d 865

Duane BARNES et al. v. The UNITED STATES.

Leonard NIELSEN v. The UNITED STATES.

Louis J. SVOBODA and Jacqueline G. Svoboda v. The UNITED STATES.

Alvin S. HANZLIK et al. v. The UNITED STATES.

Nos. 878-71, 90-73, 237-73 and 340-73.

United States Court of Claims.

July 9, 1976.

COPYRIGHT MATERIAL OMITTED

Richard A. Spellman, Omaha, Neb., for plaintiffs and attorney of record for plaintiffs in No. 340-73.

William G. Campbell, Omaha, Neb., attorney of record for plaintiffs in Nos. 878-71, 90-73, and 237-73; Kutak Rock Cohen Campbell Garfinkle & Woodward, Omaha, Neb., of counsel.

John E. Lindskold, Washington, D.C., with whom was Asst. Atty. Gen. Peter R. Taft, Washington, D.C., for defendant.

Before NICHOLS, KUNZIG and BENNETT, Judges.

OPINION

BENNETT, Judge:

The parties in these four consolidated inverse condemnation actions, claiming almost $2 million, plus interest, attorney fees, and costs, have submitted the cases to us for decision under Rule 134(b), upon a stipulation of facts filed May 14, 1975, and a supplementary stipulation filed October 3, 1975. The court accepts these stipulations and adopts them as its findings of fact.¹ On the basis of the facts so found and the law, and for the reasons hereinafter set forth, we conclude that the plaintiffs are entitled to recover in amounts to be determined in further proceedings under Rule 131(c).²

At all relevant times plaintiffs were landowners of, or owners of crops on, riparian and nonriparian fast lands situated adjacent to the confluence of the Missouri and Niobrara Rivers, near the town of Niobrara, Knox County, Nebraska. At this point, the Missouri, a navigable river, flows in a generally southeasterly direction, some 36 miles downstream from the Fort Randall Dam. Thirty-three miles further downstream one encounters the Gavins Point Dam, which since it began impounding water in Lewis and Clark Lake in 1955 has backed the reservoir all the way upstream to a point approximately 3 miles below the intersection of the two rivers. The Niobrara River empties into the Missouri in this vicinity with some considerable velocity, having followed a steeper course in its generally northerly flow.

For hundreds of years the swift currents of the Niobrara have deposited sediment near its mouth, and beyond — into the slower moving and relatively flat Missouri. These sediments from time to time have formed deltas of varying magnitude and duration in the Missouri River channel, either at or immediately downstream from the junction of the Missouri and the Niobrara. Prior to the construction and closing of the Fort Randall Dam in 1952, seasonal high flows of the Missouri River resulting from melting snow and rainfall would scour out and flush away, either partially or entirely, the sediment accumulations deposited by the Niobrara in the Missouri. Since that time, however, these seasonal high flows have been eliminated, and so too the periodic, natural removal of excess sedimentation.

The Government's engineering studies conducted in planning the Fort Randall and Gavins Point Dams indicated that the Niobrara's sediment load would continue to be deposited in the Missouri, but officials concluded that the rapid degradation of the Missouri River bed below the Fort Randall Dam would prevent undue accumulation, delta growth reaching equilibrium after 7 to 12 years. Likewise, the studies recognized that a principal effect of aggradation would be to raise the surface and groundwater elevations in the area of the town of Niobrara.

Due to the continuing deposition of sediment in the Missouri after the closing of the Fort Randall and Gavins Point Dams, by 1964 a delta of unprecedented magnitude became established in the Missouri River channel at the mouth of the Niobrara River. Its size remained stable between 1965 and 1969, vegetation becoming established in places and rendering that part of the delta more permanent than portions not affected by vegetation. Thus, the channel carrying capacity of the Missouri has become increasingly restricted over the years. By 1967 the Niobrara delta had so restricted the channel of the Missouri as to reduce its carrying capacity to about 48,000 to 60,000 cubic feet per second (c. f. s.), or roughly 50 percent below its pre-1952 capacity.

Since 1969 releases have been made from the Fort Randall Dam to evacuate the excess water accumulation caused by rains and melting snows. Some of plaintiffs' lands experience marginal flooding damage, owing to backwater effect, when discharges are maintained at 30,000 c. f. s. Such damages occur on lower areas of the Swanson property (case Nos. 878-71 and 340-73) at discharges of 15,000-20,000 c. f. s. Sustaining damages occur on some of plaintiffs' lands at times when discharges are maintained above 40,000 c. f. s., as a result of water backing up old chutes or drainage ditches, seepage under land, and submergence of low, gently sloping channel banks. Such sustaining damage also results from restriction of surface and subsurface drainage. When Fort Randall Dam discharges are maintained at about 48,000 c. f. s., complete flooding appears on some of plaintiffs' lands.

The stipulation recites that prior to 1952, occasional flooding would result from the Missouri's seasonal high flows. However, the then adequate channel carrying capacity could accommodate the additional volume in a relatively short period of time, and crops could be planted and harvested the same year without substantial difficulty. For example, in 1952 when the "flood of record" occurred, the waters had receded sufficiently by April, and the rise in June and July did not exceed 66,500 c. f. s. A successful crop was planted and harvested the same year. Prior to 1952, plaintiffs' lands were never subjected to sustained high flows during mid-August, September, October, or November. Prior to that time plaintiffs never experienced high-water tables or surface or subsurface drainage problems. Plaintiffs' lands were then among the most productive agricultural lands in Knox County, Nebraska, being useful for grazing, and the growing of corn, alfalfa, winter wheat, sorghum, and milo. Additionally, some of the riparian lands had recreational value. The lands involved in these cases consist of approximately 2,775 acres of river bottomlands along the Missouri River and 48 acres along the Niobrara River.

Flooding problems of a more lasting character began for these plaintiffs in August and September, 1969, when releases from Fort Randall Dam exceeded 50,000 c. f. s. on a sustained basis. Some 1,740 acres of bottomlands, more or less, were influenced by high waters, two-thirds of which were inundated by surface flooding. The remainder of the affected property was isolated or waterlogged by seepage, or subjected to impaired surface and subsurface drainage as well as raised groundwater table elevations. During the period between August and November of 1970, effects were experienced when releases from the Fort Randall Dam regularly surpassed 40,000 c. f. s. Surface and subsurface drainage was impeded. Plaintiffs' crop yields were reduced due to the fact that some of the acreage inundated in 1969 had not drained properly and remained waterlogged. Wetness rendered pasturelands largely useless.

While there was no bank overtopping in 1971, during the months of August through September of that year plaintiffs' lands were inundated by subsurface seepage, impaired drainage, and waters backing up into plaintiffs' creeks, chutes and drainage ditches. Gently sloping channel banks and other areas immediately adjacent to the Missouri banks were submerged. Releases during this period commonly were 47,000 c. f. s. Pasturelands were unusable; crop yields were reduced and some standing crops had to be destroyed. Flooding in August through November of 1972 approximated that of the same months in 1971. During the comparable period in 1973, releases from the Fort Randall Dam and the flow of the Missouri by plaintiffs' lands did not exceed 36,300 c. f. s. except for short periods. However, it is undisputed that as a result of the sustained high releases from Fort Randall Dam in 1969 through 1973, the elevation of the groundwater table beneath plaintiffs' lands has been raised to within 0 to 3 feet beneath the surface. The supplementary stipulation reveals that sustained releases from the Fort Randall Dam from late July through October 1975 reached 60,000 c. f. s., increasing the adverse effects previously described. Further, the presence of higher groundwater manifests itself through destruction of the land for pasture purposes, extensive cattail growth, killing of trees, rotting of crops, failure of seeds to germinate, and inability to use farm machinery on the land. It is not open to doubt upon this record that the underlying cause of the flooding problems experienced by plaintiffs is the control, storage and regulation of the flow of the Missouri River by the construction and operation of the main stem reservoir system of the Missouri River, of which the Fort Randall Dam is a part. Additionally, we are satisfied that the damaged land and crops were situated above the pre-1969 established ordinary high-water marks of the Missouri and Niobrara Rivers.

Finally, the parties have stipulated that, in the future, sustained releases from the Fort Randall Dam during the period August-November of each year may be estimated to exceed 50,000 c. f. s. in one year out of five. Releases on a sustained basis of 47,000 c. f. s. can be expected one year out of four, and continuing releases of 40,000 c. f. s. probably will occur one year out of three. Thus, the facts warrant the finding that the flooding which typified the period from 1969 to 1973 will continue indefinitely.

The parties have placed before us three separate questions. First, we must decide whether plaintiffs' lands and/or crops, or any interest therein, were taken for public use within the meaning of the ...