Orr v. United States

• Decision Date: 30 August 2019
• Docket Number: No. 18-1894L,18-1894L
• Parties: ELIZABETH ORR, HOWARD CARMAN, and LENA CARMAN, Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. Claims Court

ELIZABETH ORR, HOWARD CARMAN,and LENA CARMAN, Plaintiffs, v. UNITED STATES, Defendant.

No. 18-1894L

United States Court of Federal Claims

August 30, 2019

Takings; Motion to Dismiss; Failure to State a Claim; Lack of Jurisdiction; Tort; Doctrine of Necessity

Brian K. Matise, Burg Simpson Eldredge Hersh & Jardine, P.C., Englewood, CO for plaintiffs. With him was Nelson Boyle, Burg Simpson Eldredge Hersh & Jardine, P.C., Englewood, CO.

Brian R. Herman, Trial Attorney, Environment & Natural Resources Division, Natural Resources Section, United States Department of Justice, Washington, D.C., for defendant. With him were Jean E. Williams, Deputy Assistant Attorney General, Environment & Natural Resources Division and Jeffrey B. Clark, Assistant Attorney General, Environment & Natural Resources Division. Bryan Wilson, Attorney-Advisor, Office of the Field Solicitor, United States Department of the Interior, Billings, MT, of counsel.

OPINION

HORN, J.

FINDINGS OF FACT

Plaintiffs Elizabeth Orr, Howard Carman, and Lena Carman filed a complaint in the United States Court of Federal Claims on December 10, 2018 against the United States alleging "claims for taking of their real and personal property entitling them to just compensation under the Fifth Amendment to the United States Constitution." According to plaintiffs, "[d]uring the entire month of September 2013, Plaintiff Elizabeth Orr owned a house and surrounding real estate located in in [sic] the Big Thompson River Canyon" in Larimer County, Colorado and "Plaintiffs Howard and Lena Carman owned a home, business, and surrounding real estate located in in [sic] the Big Thompson River Canyon" also in Larimer County, Colorado. Plaintiffs allege that "[t]he properties owned by [Elizabeth] Orr and the Carmans are located below the Olympus Dam, which holds back a reservoir known as Lake Estes." In the complaint, plaintiffs assert that "[t]he Olympus Dam is part of what is known as the Big Thompson Project," is owned and operated by the United States Department of the Interior's Bureau of Reclamation (Bureau of Reclamation). The complaint alleges that the Olympus Dam was designed as "an interconnected network of reservoirs and tunnels that are not intended to stop water, but instead are intended to store and deliver water to Colorado's Front Range communities, and provide hydroelectric power," and is "not authorized or designed for flood control."

Plaintiffs assert that between September 9, 2013 and September 13, 2013, "there were predictions of historic rainfall and flooding for Larimer County, Colorado," due to a "slow-moving cold front" that had stalled over the region. Plaintiffs allege that forecasters predicted that "the slow moving storm system could lead to large amounts of rainfall over a period of several days," prompting the National Weather Service to issue "several flash flood watches and warnings for Boulder and Larimer Counties." In the complaint, plaintiffs assert that the heavy rainfall "in Boulder County and Larimer County, Colorado, result[ed] in unusually high water levels in creeks and rivers."

Plaintiffs contend that, initially, "[d]espite those predictions of historic rainfall and flooding, the Bureau of Reclamation kept the release flow rate from Olympus Dam at only 80 cfs [cubic feet per second] from September 9, 2013 until 3:05 a.m. on September 12, 2013," and the "water level at Olympus Dam rose dramatically." "At 3:05 a.m. on September 12, 2013," plaintiffs assert that the Bureau of Reclamation began to increase the flows from Olympus Dam. As a result of the heightened flow, plaintiffs claim that "[d]uring the morning of September 12, 2013, civil authorities notified Plaintiffs and other residents of the need to evacuate their homes due to possible flooding and the closure of nearby highways due to flooding." According to the complaint, the Carmans were able to leave promptly and "left behind substantially all of their possessions," while "Plaintiff [Elizabeth] Orr could not leave her property" as "the roads were closed." Instead, according to the complaint, Ms. Orr "remained at her home until that evening and she went to a neighbor's house when the river continued to rise later that evening."

Plaintiffs contend that on September 13, 2013, "[a]ccording to one report, at 11:30 p.m., the Bureau of Reclamation opened flood gates and increased the release flow from the Olympus Dam to more than 5,200 cfs" and "continued to release water from the Olympus Dam at rates near or above 5,000 cfs throughout most of the early morning hours of September 13, 2013." According to the complaint, the "sudden and enormous release of water from the Olympus Dam caused catastrophic" flooding below the dam "on the night of September 12-13, 2013 and continuing high release flows thereafter." Plaintiffs allege that they "lost substantially all of their homes, the business owned by the Carmans, and their personal property" as well as "large sections of the land and riverfront property owned by Plaintiffs," which were "displaced or permanently removed" when they were "washed away in the floodwaters released by the Bureau of Reclamation."

Plaintiffs' complaint alleges that "[d]efendant's actions constituted a taking of property or inverse condemnation." Plaintiffs contend that:

Defendant, through its agents and employees at the Bureau of Reclamation, made a conscious decision to release water from the Olympus Dam in such quantity as to create a probability, if not a certainty, that Plaintiffs' real property, homes, business, and personal property would be destroyed. Defendant made the determination to take Plaintiffs' property through its actions in releasing water from the Olympus Dam due to its concern for the integrity of the dam and the greater public good in preserving the dam and preventing the possible loss of lives if the dam broke versus Plaintiffs' property.

Moreover, plaintiffs argue that damage to plaintiffs' property "would not have occurred but for Defendant's actions." According to plaintiffs, damages, including "the loss of the use, occupancy, and enjoyment of the Plaintiffs' homes and properties and the displacement or permanent removal or alteration of the Plaintiffs' real property" were the "foreseeable result of the Defendant's actions, including the Defendant's intentional discharge of water from the dam." Plaintiffs further assert that:

Pursuant to the Fifth Amendment to the United States Constitution and applicable federal law, Plaintiffs are entitled to recover the fair market value of their property that was taken, the fair value of the time they were dispossessed from their property, the actual cost to repair and replace the property that can be repaired and replaced; [and] the fair lost market value in their properties due to the flooding.[¹]

In response to the complaint, defendant filed a motion to dismiss pursuant to Rule 12(b)(6) (2018) of the Rules of the Court of Federal Claims (RCFC), stating "three primary reasons" for dismissal:

First, the Bureau [of Reclamation]'s actions in releasing water from Olympus Dam were in response to a threat to lives and property downstream during a state and federally-declared emergency, and the United States is not liable for a taking. Second, Plaintiffs have not pleaded a viable takings claim; the claim pleaded sounds in tort. Finally, Plaintiffs have failed to plead sufficient factual content to support the causation element of any takings claim.

Defendant asserts that "the government's operation of Olympus Dam was an exercise of its police power in an emergency, not a taking." According to defendant, police power "is about protecting lives and property," and that "there is no compensable taking when thegovernment engages in unavoidable, reasonable exercise of the police power that serves the public interest, particularly where there is an extreme threat to public health, safety, or welfare." (citing Miller v. Schoene, 276 U.S. 272, 279-80 (1928)). Defendant claims that the Bureau of Reclamation increased the Olympus Dam's release flow in September 2013 "to preserve the dam and protect lives and property." According to defendant, "[t]he magnitude of this storm and the resultant flooding led both [Colorado] Governor Hickenlooper and President Obama to declare states of emergency in Colorado." "[A] breach or failure of the dam," defendant asserts, "would [have] cause[d] massive additional flooding in the midst of an already-existing emergency—the dam posed a 'grave threat[] to the lives and property of others.'" (alterations in original) (quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029 n.16 (1992)). Citing to Lucas v. South Carolina Coastal Council, 505 U.S. at 1029 n.16, defendant contends that because the Bureau of Reclamation increased the Olympus Dam's flow to "preserve the dam and protect lives and property . . . its actions do not give rise to a claim for a taking."

Defendant also argues that plaintiffs' cause of action for "inverse condemnation" "sounds in tort," arguing that plaintiffs previously made similar arguments in plaintiffs' earlier filed case in the United States District Court for the District of Colorado. See Compl., Orr v. United States, No. 17-02420 (D. Colo. Oct. 6, 2017).² Defendant notes that before the plaintiffs' dismissed the District Court case on March 1, 2018, plaintiffs argued that the Bureau of Reclamation "failed to meet the standard of reasonable care" under a negligence theory. See Notice of Dismissal, Orr v. United States, No. 17-02420 (D. Colo. Mar. 1, 2018).

Defendant further alleges in its motion to dismiss that plaintiffs' "factual allegations to support causation" are "entirely conclusory, and insufficient for pleading purposes" because plaintiffs "have not pleaded any facts supporting a conclusion that the dam made them worse off." Defendant asserts that "their repeated references to the historic nature of the storm only support the inference that their properties...