Free Published Opinion - District Court of Federal Claims - federal

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In the United States Court of Federal Claims
No. 99-4451 L c/w 99-4453L, 99-4454L, 99-4455L, 99-4456L, 99-4457L, 99-4458L, 99-4459L, 9944510L, 99-44511L, 99-44512L, 00-365L, 00-379L, 00-380L, 00-381L, 00-382L, 00383L, 00-384L, 00-385L, 00-386L, 00-387L, 00-388L, 00-389L, 00-390L, 00-391L, 00392L, 00-393L, 00-394L, 00-395L, 00-396L, 00-398L, 00-399L, 00-400L, 00-401L, 051353L, 05-1381L, 06-72L (E-Filed: September 28, 2007) _________________________________ ) JOHN H. BANKS, ET AL., ) ) Plaintiffs, ) 99-4451 L ) v. ) ) ) THE UNITED STATES, ) ) Defendant. ) ) _________________________________ ) ) EUGENE J. FRETT, Individually and ) as Trustee of the Victor J. Horvath ) and Frances B. Horvath Trust, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ) _________________________________ ) 1

Taking; Trial of Liability for Erosion of Beachfront Properties South of Harbor Jetties at St. Joseph, Michigan

05-1353 L

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John B. Ehret, Olympia Fields, IL, for plaintiffs in Nos. 99-4451 L, 05-1381 L, and 06-72 L. Eugene J. Frett, Chicago, IL, pro se in No. 03-1353 L. Terry M. Petrie, Denver, CO, with whom were Heide L. Herrmann and G. Evan Pritchard, Environment & Natural Resources Division, United States Department of Justice, Washington, DC, for defendant. Gary W. Segrest, Office of Counsel, United States Army Corps of Engineers, Detroit, MI, of counsel. OPINION 1

I.

Procedural Background

The St. Joseph River enters Lake Michigan between St. Joseph, Michigan, and Benton Harbor, Michigan. Motion to Partially Dismiss and Memorandum in Support Thereof (Motion or Def.'s Mot.), Feb. 26, 2007, 5.2 In the 1830s, the United States Army Corps of Engineers (Corps) re-constructed the mouth of the St. Joseph River and began constructing harbor jetties 3 that jutted generally westward into Lake Michigan in order to accommodate commercial shipping traversing the St. Joseph River into Lake Michigan. Id. The Corps lengthened the jetties periodically until they reached their present-day length in the year 1903. Id. From the early 1950s to 1989, the Corps incrementally encased the jetties in steel. Id. In the 1970s, the Corps instituted a beach nourishment program to mitigate erosion along the shoreline south of the harbor jetties. Banks v. United States (Banks (accrual) II), 314 F.3d 1304, 1306-07 (Fed. Cir. 2003). "The Corps has provided fine sand nourishment for more than [fifteen] years on feeder beaches, deposited coarser sediments along the shoreline at least five times between 1986 and 1993, and placed barge-loads of large rocks into Lake Michigan in 1995." Def.'s Mot. 5-6. The Corps issued three technical reports in 1996, 1997, and 1999 (Reports), which "addressed the Corps' The court attaches an Appendix at the end of this Opinion with a Table of Contents. Page numbers keyed to this slip opinion are shown in parentheses following each Table of Contents topic line. Facts relied on in this Opinion and cited to the filings of only one of the parties do not appear to be in dispute. This Opinion will refer to the harbor jetties at St. Joseph, Michigan, interchangeably as St. Joseph Harbor, the harbor, the piers, or the jetties. 2
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mitigation efforts and collectively concluded that the erosion was permanent and irreversible." Def.'s Mot. 6; Banks (accrual) II, 314 F.3d at 1307. Plaintiffs are the owners of property along approximately four and a half miles of the eastern shore of Lake Michigan south of St. Joseph Harbor. Def.'s Mot. 6; Banks (accrual) II, 314 F.3d at 1306. In July of 1999, sixteen of the current plaintiffs filed suit claiming that the Corps' construction and maintenance of the jetties from 1950 to 1989 caused erosion of their shoreline property. Def.'s Mot. 2, 6; see also Original Complaint of July 9, 1999, 2 ("Plaintiffs are riparian landowners who are uniformly suffering loss of property without just compensation arising out of the Defendant's construction and maintenance of fifteen jetties along the east coast of Lake Michigan."). By February 2000, the number of plaintiffs had increased to thirty-seven. Def.'s Mot. 2; Banks v. United States (Banks (accrual) I), 49 Fed. Cl. 806, 808 (2001).4 The United States moved to dismiss in February 2001, claiming that plaintiffs' actions were time-barred under 28 U.S.C. § 2501, which states that claims of which the Court of Federal Claims has jurisdiction must be filed within six years of accrual. Def.'s Mot. 2. The court granted the motion and dismissed plaintiffs' claims in July 2001. Banks (accrual) I, 49 Fed. Cl. at 826. The court reasoned that plaintiffs' takings claims were barred by the six-year statute of limitations no later than 1989 because the "gradual process of shoreline erosion set into motion by the government had resulted in a permanent taking and the extent of the damage had become reasonably foreseeable." Id. at 825. The United States Court of Appeals for the Federal Circuit (Federal Circuit) reversed and remanded. Banks (accrual) II, 314 F.3d at 1305-06. Because a claim cannot accrue while the damages remain justifiably uncertain, the Federal Circuit stated that "the question is whether the `predictability [and permanence] of the extent of damage to the [plaintiffs'] land' was made justifiably uncertain by the Corps' mitigation efforts." Id. at 1309 (citing Applegate v. United States (Applegate I), 25 F.3d 1579, 1583 (Fed. Cir. 1994)). The Federal Circuit held that "[w]ith the mitigation efforts underway, the accrual of plaintiffs' claims remained uncertain until the Corps' 1996 Report, 1997 Report, and 1999 Report collectively indicated that erosion was permanent and irreversible." Id. at 1310. These Reports "brought to an end plaintiffs' `justifiable uncertainty' which had been created by the Corps's mitigation efforts about the permanency of erosion." Def.'s Mot. 4 (quoting Banks (accrual) II, 314 F.3d at 1310). The statute of limitations began to The Stone plaintiffs filed a Joint Stipulation of Dismissal with Prejudice on June 1, 2007; judgment was entered against the Stone plaintiffs as provided in Rule 54(b) of the Rules of the Court of Federal Claims (RCFC) on June 13, 2007, in case number 04-277 L. 3
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run only after these Reports had been issued, and "[b]ecause the [R]eports were issued less than six years before plaintiffs filed their complaints, the Federal Circuit viewed each complaint as timely." Def.'s Mot. 4.5 After remand, the court consolidated the claims of all plaintiffs for the limited purpose of a trial of liability. See Order of Jan. 4, 2007; Order of Mar. 15, 2005; Order of Mar. 17, 2006 (consolidating Frett v. United States, No. 05-1353 (Fed. Cl. filed Dec. 22, 2005) into Banks et al. v. United States). Defendant filed its Motion on February 26, 2007, Def.'s Mot. 1, arguing that the Federal Circuit's decision did not apply to fifteen of the plaintiffs (Banks (accrual) II plaintiffs) because these plaintiffs "had no justifiable uncertainty regarding the erosion to their property," Def.'s Mot. 12. In the time since the Banks (accrual) II decision, defendant alleged, new evidence had come to light: (1) "Some plaintiffs had no knowledge whatsoever of the Corps' efforts" to mitigate the loss, id., that is, they had no reason to believe that the clearly visible "permanent taking," Banks (accrual) I, 49 Fed. Cl. at 825, was not permanent, see Banks (accrual) II, 314 F.3d at 1310; and (2) "Others, while aware of the Corps' efforts, did not believe it would benefit their property," Def.'s Mot. 12, that is, they were not uncertain at all as to the permanency of the damage. Defendant further alleged that plaintiffs Bodnar and Okonski, who filed their complaints after the Banks (accrual) II decision, were barred by the statute of limitations because they were "on inquiry notice" of their claims and failed to file within the six-year limit. Id. at 19-22. The court held, in its May 3, 2007, Opinion, that the accrual of a takings claim pursuant to 28 U.S.C. § 2501 was governed by an objective standard. Banks v. United States (Banks (accrual) III), 76 Fed. Cl. 686, 694-95 (2007). Therefore, plaintiffs' subjective knowledge and interpretations were irrelevant to the question of accrual, and the Federal Circuit's decision that these plaintiffs' claims did not accrue until the issuance of the Reports ­ and thus, are not barred by the six-year statute of limitations ­ still applied to the fifteen Banks (accrual) II plaintiffs. Id. at 696. The court further held that "[a]s landowners when the Reports were issued, the Okonski [and the Bodnar] plaintiffs are in the same position with respect to ownership of their property as the other plaintiffs who are subject to this Motion, that is, they purchased their property when the extent of the damage remained `justifiably uncertain.'" Id. (citing Banks (accrual) II, 314 F.3d at 1309). The Bodnar plaintiffs were not barred by the statute of limitations because, having filed on December 28, 2005, they clearly fell within the six-year period of accrual that For additional background, see Banks v. United States (Banks (accrual) I), 49 Fed. Cl. 806, 807-08 (2001). 4
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began with the issuance of the last of the Reports, the so-called "1999 Report," presumably in January of 2000. Id. The court deferred decision on the Okonski plaintiffs' claims because, without a more precise publication date for the 1999 Report, it was uncertain whether the January 27, 2006, filing date of their complaint was barred by the six-year statute of limitations. Id. at 696-97. On May 15, 2007, the court issued its Opinion on the accrual of the Okonski plaintiffs' claims. Banks v. United States (Banks (accrual) IV), 76 Fed. Cl. 698 (2007). The court held that the objective standard governing accrual mandated "that accrual of plaintiffs' claims turns on some public availability or dissemination of the Reports." Id. at 701. Despite what appears to be an internal publication date of January 2000 of the last of these Reports, the evidence indicates that there was no public dissemination of this Report prior to January 27, 2000, and thus no constructive notice to plaintiffs of the information in that Report prior to that date. Id. Thus, the Okonski plaintiffs' January 27, 2006, claim was not barred by the statute of limitations. Id. at 701-02. While pretrial discovery was underway, the court requested that the parties brief the issues of 1) over what period of time a plaintiff's claim is to be examined, and 2) on what date the high water mark is measured. Banks v. United States (Banks (scope) I), 68 Fed. Cl. 524 (2005). The court held that case law, as plaintiffs acknowledge, mandates that plaintiffs alleging a taking "may not bring a claim for any land lost prior to the time they purchased their respective properties." Id. at 528 n.7 (citing Banks' Plaintiffs' Memorandum in Support of Their Cross[-]Motion for Summary Judgment as to the Period of Claim Examination and the High Water Mark, Mar. 30, 2005, Docket No. 68 in Case No. 99-4451 L (Banks Opp'n), 6); Banks Plaintiffs' Reply Memorandum in Support of [Their] Cross[-]Motion for Partial Summary Judgment as to the Period of Claim Examination (POCE) and High Water Mark (HWM), May, 19, 2005, Docket No. 80 in Case No. 99-4451 L, 7 ("All claims are valid and the period of examination is from the date of purchase until the plaintiffs are paid."). Further, the court held that the federal navigational servitude is a pre-existing encumbrance on a landowner's title, Banks (scope) I, 68 Fed. Cl. at 531, thereby precluding compensation for encroachments existing at the time of purchase pursuant to this servitude, see id. Nevertheless, landowners may be compensated for damage to their properties beyond the scope of the servitude, namely, "land located above or outside . . . the high water mark at the time of construction." Id. at 534 (quoting Owen v. United States, 851 F.2d 1404, 1412 (Fed. Cir. 1988)) (omission and emphasis in original). Although the piers were initially constructed in 1836, plaintiffs argued, and the court agreed, that "[t]he `time of construction' . . . is the thirty-nine year period, specifically between 1950 and 1989, during which the Corps installed steel sheet piling to the St. Joseph Harbor jetties." Id. at 527 (citing Banks Opp'n 3). "For the foregoing reasons, the court must examine each plaintiff's claim during the liability phase 5

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of trial from the acquisition date of the plaintiff's property through the date of claim accrual in January 2000" 6 but no earlier than 1950, the year when the Corps began its steel construction and from which time the high water mark will be measured. Id. at 535 (emphasis added).7 Plaintiffs subsequently moved for clarification of the term "high water mark," which the court denied, stating that:

The law of the case doctrine has established that "[w]hen a case has been once decided by [a superior court,] . . . . [t]he [lower court] is bound by the decree as the law of the case." In re Sanford Fork & Tool Co., 160 U.S. 247, 255 (1895). This doctrine does not apply, in relevant part, when there is "discovery of new and different material evidence that was not presented in the prior action." Intergraph Corp. v. Intel Corp. (Intergraph), 253 F.3d 695, 698 (Fed. Cir. 2001). When a prior decision by the same court "is clearly incorrect and its preservation would work a manifest injustice," id., the same court may depart from the law of the case, see e.g., Gould, Inc. v. United States, 67 F.3d 925, 927-28 (Fed. Cir. 1995); DeLong Equip. Co. v. Washington Mills Electro Minerals Corp., 990 F.2d 1186, 1197 (11th Cir. 1993); Terrell v. Household Goods Carriers' Bureau, 494 F.2d 16, 19-20 (5th Cir. 1974). For a more detailed analysis of the law of the case doctrine, see Banks v. United States (Banks (accrual) III), 76 Fed. Cl. 686, 689-91 (2007). The law of the case doctrine affects, in two respects, the phrase "through the date of claim accrual" in the court's opinion in Banks v. United States (Banks (scope) I), 68 Fed. Cl. 524, 535 (2005). First, an opinion of the court subsequent to Banks (scope) I held that despite what appears to be an internal publication date of January 2000 of the last of the 1996, 1997, and 1999 Reports, the evidence indicates that there was no public dissemination of this Report prior to January 27, 2000, and thus no constructive notice to plaintiffs of the information in that Report prior to that date. Banks v. United States (Banks (accrual) IV), 76 Fed. Cl. 698, 701 (2007). The implication of Banks (accrual) IV is that the date of accrual is, in any case, no earlier than January 27, 2000. Second, even if the date of accrual is not definitively fixed, the court is charged with determining the extent of any damage that is "permanent and irreversible," Banks (accrual II), 314 F.3d 1304, 1310 (2003), which necessarily contemplates damage that occurs after the date of claim accrual, Banks (scope) I, 68 Fed. Cl. at 530 n.12 ("As a matter of law, each plaintiff is entitled to `"just compensation" [that] includes . . . recovery for "all damages, past, present and prospective."'" (quoting Ridge Line, Inc. v. United States, 346 F.3d 1346, 1359 (Fed. Cir. 2003))). These parameters are a prior holding of the court binding the parties. Notwithstanding that the law of the case established that damages would be tried for a period "no earlier than 1950" above the ordinary high water mark, Banks (scope) I), 68 Fed. Cl. at 535, plaintiffs claim damages for "all the beach lost below the [ordinary high water mark]," Plaintiffs' Opening Post Trial Brief (Plaintiffs' Brief or Pls.' Br.), July 6, 2007, 47, and have changed their litigation position in trial briefing to claim damages caused since the construction of the jetties in 1836 and prior to the acquisition by many plaintiffs of their properties, see Part V.A.1. 6
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Federal case law alternates between the use of the terms "high water mark" and "ordinary high water mark" to describe the boundary of the navigational servitude . . . . Accordingly, the court here declines to clarify the terminology as requested by plaintiffs [and further to define the scope of the Corps' navigational servitude]. The court will, at trial, determine the specific location of the appropriate boundary with reference to the regulations and case law. Banks v. United States (Banks (scope) II), 71 Fed. Cl. 501, 506 (2006).8 The court also denied plaintiffs' motion to certify certain questions propounded by plaintiffs, which concerned questions of federal law, to the Michigan Supreme Court. Id. at 509. On June 23, 2005, the court directed the parties to brief the issue of "whether the Corps [may be] liable for any erosion caused by plaintiffs' own efforts to mitigate the damage from the Corps' activities in St. Joseph Harbor by placing shore protection on their respective properties." Banks v. United States (Banks (revetments) I), 69 Fed. Cl. 206, 208 (2006) (quoting Order of June 23, 2005). Extensive briefing followed from both parties, which included the Banks plaintiffs' Answer as to Whether the Corps is Liable for Any Erosion Caused by Plaintiffs' Own Efforts to Mitigate the Damage from the Corps' Activities in St. Joseph Harbor by Placing Shore Protection on Their Respective Properties, defendant's Motion for Partial Summary Judgment as to the Erosion Caused by Plaintiffs' Shore Protection, and the Banks plaintiffs' Motion to Take Judicial Notice of the Michigan Supreme Court ruling on July 29, 2005 in Glass v. Goeckel[,] Docket no. 126409. Banks (revetments) I, 69 Fed. Cl. 208-09.9 The court noted in its opinion that plaintiffs asserted that, of the thirty-seven plaintiffs in the consolidated case at the time, only plaintiff Del Mariani had not installed shore protection. Id. at 210. The court held, in relevant part, that property damage that results from the presence of protective structures is a "direct, natural, or probable result" of defendant's actions ­ as evidenced by the consideration of potential damage to the property of others during the permitting process ­ and property damage resulting from shore protection installed by plaintiffs is a compensable injury if plaintiffs establish at trial a causal link between defendant's activities and the construction of the revetments, the limitation of liability language in the permit application form for authorization to construct the protective structures notwithstanding. Id. at 214, 217. Accordingly, the Corps will be liable for damage

The location of the high water mark was not addressed in the trial of liability. See Banks Trial Transcript (Tr.) passim. The subject will, however, necessarily arise in any trial of damages. For a complete description of the briefing, refer to Banks v. United States (Banks (revetments) I), 69 Fed. Cl. 206, 208-209 (2006). 7
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caused by plaintiffs' revetments to plaintiffs' properties if defendant's activities can be shown to have caused damage to plaintiffs' properties compensable as a taking. Trial on liability began on Monday, June 4, 2007, and concluded on Friday, June 8, 2007. The court heard testimony from 22 witnesses 11 and received some 75 exhibits
10

The day before the trial, the court conducted a site visit with plaintiffs, defendant, and some witnesses. Order of Mar. 16, 2007; Joint Status Report Regarding Site Visit, Apr. 6, 2007; Order of Apr. 12, 2007. As the court made clear prior to the trial, this visit was off the record and did not constitute evidence. Order of Apr. 12, 2007, 2; Banks Pretrial Transcript (Pretrial Tr.) 162:4-10. For convenient reference, the name, in alphabetical order, and a description of each witness upon whose live testimony the court relies in this opinion follows: Mr. Stephen P. Blumer, a supervisory hydrologist at the United States Geological Survey (USGS), Tr. 955:22-956:1, is a fact witness for plaintiffs, Plaintiffs' Filing of Trial Exhibits and Witnesses Pursuant to Court Order (Docket 206 - 5/10/07) (Pls.' Wit.), filed May 11, 2007, 20. In that position, he runs USGS data programs, oversees those programs in the state of Michigan, and reviews USGS surface water, groundwater, and water quality data collection programs. Tr. 956:1-4. Mr. Blumer earned a bachelor's degree in forest hydrology from Michigan Technological University and did graduate studies in a watershed hydrology program at the University of Arizona. Id. at 955:16-21. Ms. Gail Lois Chapman, one of the plaintiffs in this case, is a fact witness for plaintiffs. Pls.' Wit. 27. She and her husband own property along the St. Joseph River, which they bought in 1966. Tr. 274:11-14. Ms. Chapman has lived in St. Joseph since she was two years old. Id. at 274:19-20. She holds a bachelor of science degree in education from Central Michigan and a master's degree in library science from the University of Michigan. Id. at 274:23-275:1. Dr. Michael John Chrzastowski, a Senior Coastal Geologist with the Illinois State Geological Survey, is an expert witness for plaintiffs. Tr. 166:1-2, 169:6-13. He has bachelor's degrees in oceanography, geology, and geography and a master's degree and Ph.D. in coastal geology. Id. at 166:16-20. He earned his bachelor's degrees at the University of Washington, his master's degree at Western Washington University, and his doctorate at the University of Delaware. Id. at 166:23-167:1. He focuses on coastal erosion, an area in which he has worked since 1974. Id. at 168:18-23. He joined the Illinois State Geological Survey in 1987. Id. at 169:1-2. The court qualified Dr. Chrzastowski as an expert in littoral drift, coastal geology, equilibrium beaches, grain size of sand and sediment, down-cutting, glacial till, lake bed lowering, and erosion and its causes. Id. at 169:6-13. Ms. Carole L. Ehret, one of the plaintiffs in this case, is a fact witness for plaintiffs. Pls.' 8
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Wit. 28. She graduated from the University of Michigan in 1953 with a bachelor of arts degree in English literature. Tr. 737:11-12. She was raised in St. Joseph and lives there currently. See id. at 738:15-739:1. Mr. James Mitchell Ellison III, Chief Boatswain Mate in the United States Coast Guard, Tr. at 315:18-316:2, is a fact witness for plaintiffs, Pls.' Wit. 21. He has been in that position since 1994. Tr. 315:23-24. He was stationed in St. Joseph from 1997 to 2000. Id. at 316:8-9. Mr. Martin Richard Jannereth, Chief of the Lake, Streams, and Shoreland Section of the Land and Water Management Division of the Michigan Department of Environmental Quality (MDEQ), Tr. at 920:6-16, is a fact witness for plaintiffs, Pls.' Wit. 22. He has worked for MDEQ and its predecessor, the Department of Natural Resources, for over thirty-three years. Tr. 920:10-13. He holds a bachelor's degree in forestry and a master's degree in forest ecology with an emphasis on soil science from Michigan State University. Id. at 920:3-5. Mr. Dean King, a resident of Holland, Michigan and employed in The King Company, a dredging and pile driving business, Tr. at 329:14-330:7, is a fact witness for plaintiffs, Pls.' Wit. 22. The King Company contracts with the United States Army Corps of Engineers (Corps), and it has done hundreds of jobs for that entity. Tr. 330:10; 330:23-24. The King Company has performed maintenance dredging in St. Joseph Harbor for the government. Id. at 331:1-5. Mr. John Konik, employed as Chief of the Regulatory Office of the Corps, Detroit District, Tr. 1345:2-8, is a fact witness for defendant. He has worked for the Corps' regulatory division for twenty-seven years. Id. at 1345:4-16. In his current position, he manages the regulatory program for the Detroit District. Id. at 1345:19. Dr. Grahame J. Larson is an expert witness for defendant who was also called as a fact witness for plaintiffs. See id. at 860:3-20; 972:16-976:17. He is a professor of hydrogeology, glacial geology, and introductory geology at Michigan State University. Tr. at 855:1-4. He holds bachelor's and master's degrees in geology from Ohio Wesleyan University and a Ph.D. in geology from Ohio State. Id. at 855:9-12. He has taught at Michigan State University for about thirty years. Id. at 855:13-15. The court qualified Dr. Larson as an expert in glacial geology, glaciology, and hydrology. Id. at 976:22-25. Mr. Lloyd Richard Marzke, one of the plaintiffs in this case, is a fact witness for plaintiffs. Pls.' Wit 28. He bought property along the St. Joseph River in 1969. Tr. 886:3-4. Dr. Guy Allen Meadows, professor of Physical Oceanography in the Department of Naval Architecture and Marine Engineering and the Department of Atmospheric, Oceanic and Space Sciences at the University of Michigan, Tr. 28:12-16, is an expert witness for plaintiffs, id. at 32:12-33:22. He holds two degrees in mechanical engineering and a Ph.D. from Purdue University. Id. at 28:20-23. His major area of focus is "coastal hydrodynamics with an emphasis 9

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on experimental measurements at full scale, meaning [he makes] measurements in the real world as opposed to laboratories." Id. at 28:25-29:3. He has taught at the University of Michigan since 1977, id. at 32:2, and he has studied Lake Michigan for most of his career, id. at 29:9-10. The court qualified Dr. Meadows as an expert in littoral drift, littoral zone, equilibrium beach, the granular structure of sand, the depth of closure, net littoral drift, gross littoral drift, and the navigational characteristics of the piers at the St. Joseph Harbor. Id. at 32:12-33:22. Mr. Robert Dale Melcher, one of the plaintiffs in this case, is a fact witness for plaintiffs. Pls.' Wit. 28. He lives in the Grand Mere area between North Grand Mere Lake and Lake Michigan, on property he bought in approximately 1971. Tr. 506:4-5;507:1-3. Mr. Donald D. Miller, one of the plaintiffs in this case, is a fact witness for plaintiffs. Pls.' Wit. 28. He was born and raised in St. Joseph. Tr. 780:15. He currently owns property in St. Joseph that originally belonged to his parents and on which he built a house in 1959. Id. at 780:22-25. Dr. Robert B. Nairn, a coastal engineer employed by W.F. Baird & Associates (Baird), id. at 1080:3-21, is an expert witness for defendant, id. at 1107:22-24; see id. at 1081:8-1082:3. He has worked as a coastal engineer for approximately 25 years, id. at 1080:5-6, and he has worked at Baird since 1992, id. at 1080:22-23. Dr. Nairn received a bachelor of science degree in civil engineering from Queens University in Kingston, Ontario, in 1982. Id. at 1082:11-14. In 1985, he received a master's degree in coastal engineering at Queens University. Id. at 1082:2123. He then earned a Ph.D. in coastal processes, coastal engineering, sediment transport from Imperial College, London. Id. at 1082:25-1083:2. The court qualified Dr. Nairn as an expert witness in coastal engineering, river engineering, coastal processes, sediment transport, including the use of a sediment budget and the calculation of longshore transport rate, numerical modeling, and shore protection, including shore protection design, impacts of coastal structures on shore erosion, and beach erosion. Id. at 1107:22-24; see id. at 1081:8-1082:3. Mr. Thomas William O'Bryan, a fact witness for plaintiffs, Pls.' Wit. 24, is the Chief of the Construction Branch of the Corps, a job in which he oversees contract administration related to any construction or contract work of the Corps, Tr. 719:20-23. He graduated from Wayne State University in 1981 with a bachelor of science degree in civil engineering. Id. at 719:5-8. He has worked for the Corps since 1978. Id. at 719:11-12. Dr. James Patrick Selegean is a fact witness for plaintiffs, Pls.' Wit. 7, and defendant's witness under RCFC 30(b)(6), Defendant's Motion for Leave to File Correct Response to Court Order Filed May 10, 2007 RE: Witnesses and Exhibits, Ex. 3, 4; RCFC 30(b)(6) (describing witnesses "designate[d by a governmental agency] who consent to testify on [the governmental agency's] behalf"). He is a hydraulic engineer for the Detroit District of the Corps. Tr. 325:20326:3. He has been employed there for about fifteen years. Id. at 325:23-24. His work involves monitoring erosion processes on the Great Lakes, running wave models, and determining 10

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sediment transport along shorelines and in rivers. Id. at 326:5-9. He holds a bachelor of science degree in civil engineering, a master's degree in civil and environmental engineering, a master's degree in biology, and a Ph.D. in environmental engineering. Id. at 326:12-17. He earned all of his degrees at Wayne State University. Id. Mr. David L. Schweiger, the Chief of the Engineering Design and Construction Office of the Corps, id. at 705:21-22, is a fact witness for plaintiffs, Pls.' Wit. 25. In that position, he oversees the design of civil works projects within the jurisdiction of the Corps and all construction activities, civil and military works, within the Detroit District. Tr. 705:24-706:3. Previously, Mr. Schweiger was the Assistant Chief of the Engineering and Technical Services Division from December 2001 until January 2004 and the Chief of the Hydraulics and Hydrology Division from 1996 through 2001. Id. at 706:4-14. As Chief of the Hydraulics and Hydrology Division, Mr. Schweiger was responsible for the Corps' issuing of monitoring reports. Id. at 706:15-17. He earned a bachelor of science degree in civil engineering from Michigan State University in 1973. Id. at 705:5-6. Mr. Scott J. Thieme, Chief of the Great Lakes Hydraulics and Hydrology office of the Detroit District of the Corps, id. at 490 6-8, is a fact witness for plaintiffs, Pls.' Wit. 26. He has a bachelor's degree in civil engineering, and he has spent most of his career at the Corps in civil engineering, mostly hydraulics and hydrology. Tr. 489:24-490:1. Mr. Charles Lyle Thompson, employed by the Detroit District Corps from 1979 to 2003, id. at 397:17-19, is a fact witness for plaintiffs, Pls.' Wit. 26. During that time, he worked exclusively with the hydraulics and hydrology branch where he studied the flow measurements of rivers. Tr. 397:17-398:6. He performed work on the Lake Michigan coastline between St. Joseph and New Buffalo. Id. at 398:16-19. Mr. Thompson holds a bachelor's degree in earth science from the College of Minnesota, and he has done some graduate work in ocean engineering at the University of Michigan. Id. at 398:10-12. He also took classes at Lawrence Tech and Wayne State University. Id. at 398:12-13. Mr. Richard Albert Voss, a fact witness for plaintiffs, Pls.' Wit. 26, was raised in St. Joseph and continues to live there now, Tr. 787:20-788:4. He retired over a year ago from his employment as a real estate appraiser. Id. at 787:15-19. He attended one semester of college and received "significant education in real estate industry in both brokerage and appraisal." Id. at 787:12-14. Ms. Marcia Wineberg, one of the plaintiffs in this case, is a fact witness for plaintiffs. Pls.' Wit. 28. She currently works as an administrative assistant at the Portland Cement Association in Skokie, Illinois. Tr. 242:25-243:2. She graduated from high school and completed one year of college. Id. at 242:23-24. Ms. Wineberg and her husband own property along the St. Joseph River, which they bought in two stages. Id. at 243:11-13. 11

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into evidence. Banks Trial Transcript (Tr.) passim. After trial, the parties submitted the following briefing: Plaintiffs' Opening Post Trial Brief (Plaintiffs' Brief or Pls.' Br.), Defendant's Post-Trial Brief (Defendant's Brief or Def.'s Br.), Plaintiffs' Response to Defendant's Post Trial Brief (Plaintiffs' Response or Pls.' Resp.), and Defendant's Response to Plaintiffs' Post-Trial Brief (Defendant's Response or Def.'s Resp.). The court notes that plaintiffs organize their briefing in a series of paragraphs that refer to evidence in a delphic manner: Plaintiffs often fail to explain their interpretations of that evidence and the relevance of that evidence to their argument. See e.g., Pls.' Br. 22 ("PX94-19, PX Summary Tab 7.3 shows 110,000 cy/y southbound at St. Joseph 1322:3-22."). This approach results in arguments that are at best difficult to follow and, at worst, in defendant's characterization, "indecipherable." Def.'s Resp. 1; see generally Pls.' Br. passim; Pls.' Resp. passim. The court's difficulty in interpreting plaintiffs' briefing and, therefore, plaintiffs' view of the correct interpretation of the evidence at trial, is exacerbated by plaintiffs' making irrelevant arguments (given the scope of the trial and prior decisions on this case by the court) and assuming inconsistent positions. See Def.'s Resp. 1. The court made its best efforts, with help from Plaintiffs' Memorandum of Law and Facts (Plaintiffs' Memorandum or Pls.' Mem.) as further guidance, to interpret plaintiffs' theories of the case based on plaintiffs' briefing and the available evidence. II. Background: Littoral Processes, Removal of Material from the Littoral System, Erosion, Mitigation, and Major Issues "Sediment12 transport very simply is the movement of sand, clay or silt driven by

Mr. Jay Kevin Wesley, a fisheries manager for the Department of Natural Resources of the State of Michigan, id. at 897:17-20, is a fact witness for plaintiffs, Pls.' Wit. 27. In that position, he manages all of the southwest Michigan inland lakes and streams and the southern part of Lake Michigan. Tr. 897:22-23. He has a bachelor's degree in fisheries biology from Michigan State University and a master's degree in natural resource management from the University of Michigan. Id. at 898:2-4. The witnesses at trial used the term "sediment" in differing ways. See, e.g., Tr. 34:1517 (Meadows) ("By sediment I'm referring to sand size particles . . . ."); Tr. 176:21-23 (Chrzastowski) ("And the sediment that's deposited at the bottom of glacial ice is till, and it's a very compact silt and clay and may contain pebbles."). The court understands the word "sediment" in common usage to be a generic term as defined in the second definition in the American Heritage Dictionary, relevant to this litigation: "Solid fragments of inorganic or organic material that comes from the weathering of rock and are carried and deposited by wind, water, or ice." American Heritage Dictionary 1575 (4th ed. 2000); Tr. 1102:25 (Nairn) 12
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the motion of water." Tr. 1099:8-9 (Nairn). This term could be used interchangeably with "littoral drift." Tr. 1039:3 (Larson) ("Littoral drift is transport."); Pls.' Br. 26; see, e.g., Tr. 39:16-40:8 (Meadows). Sediment transport occurs along the nearshore profile, which is "from the shoreline lakeward to the extent of wave influence on changes on the bottom." Tr. 190:6-10 (Chrzastowski). The littoral zone or littoral system is the area along the shoreline where sediment transport occurs. See, e.g., Tr. 34:12-20 (Meadows); Tr. 1161:8-10, 1330:8-11 (Nairn). The depth of closure is a point from the shore beyond which "there is never enough energy to move [sediment particles] again," Tr. 40:22-25 (Meadows), that is, a point beyond the littoral zone. Experts have opined that the depth of closure is at different locations: Dr. Guy Allen Meadows estimated it to be between 18 and 21 feet of depth for most of the Lake Michigan coast, Tr. 41:1-2, 43:3-14 (Meadows); Dr. James Patrick Selegean testified that he believes the depth of closure to be "closer to the 30-foot range, although [he has not] done any calculations to support that," Tr. 610:15-20 (Selegean); and Dr. Robert B. Nairn testified that it was at a "depth greater than 10 or 15 or 20 meters [10.9 or 16.35 or 21.8 yards]13 ," Tr. 1214:23-24 (Nairn). The zone beyond the depth of closure is known as "deep water." See Tr. 610:11-13 (Selegean). A sediment source is what provides sediment into the littoral zone for transport. See, e.g., Tr. 34:18-20 (Meadows). A sediment sink, on the other hand, is a place that traps sediment, removing it from sediment transport and thus from the littoral system. See Tr. 191:1-7 (Chrzastowski). Sinks are usually depressions on the lake bed deep enough that wave action can no longer influence sediment movement, which results in the sediment trap. Id. It is undisputed in this case that the long-term net littoral drift in the area of St. Joseph Harbor moves from north to south. Plaintiffs' Exhibit (PX) 93 (Section 111 Detailed Project Report on Shore Damage at St. Joseph Harbor, Michigan (1973 Report)) 11; PX 22 (Mitigation of Shore Damage Attributed to the Federal Navigation Structures at St. Joseph Harbor, Michigan (1974 Report)) 231; PX 24 (Effectiveness of Beach Nourishment on Cohesive Shores, St. Joseph, Lake Michigan (1997 Report)) 3; PX 23 (Geologic Effects on Behavior of Beach Fill and Shoreline Stability for Southeast Lake Michigan (1996 Report)) 9; Tr. 1277:4-13 (Nairn); Pls.' Br. 20; PX 33 (Preliminary Results of a Pilot Study Conducted Between St. Joseph, Michigan and Michigan City,

("sediment . . . is lifted and moved"). Further technical specificity is supplied by the context in which the word is used, especially by testifying experts. The conversion from meters to yards was calculated by multiplying each metric measurement by 1.09. American Heritage Dictionary 1088 (4th ed. 2000). 13
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Indiana (1992 Pilot Study)) 10; Tr. 39:2-15 (Meadows); Tr. 172:6-9, 173:8 (Chrzastowski); see Def.'s Br. passim. It is also undisputed that the disruption of littoral drift by St. Joseph Harbor depletes sediment supply in the littoral zone and causes erosion. PX 93 (1973 Report) 29; PX 101 (REVIEW Origin and Evolution of the Great Lakes) 537; Tr. 1039:9-1041:18 (Larson); Pls.' Br. 26-27; PX 33 (1992 Pilot Study) 10 ("The harbor jetties . . . have effectively trapped some of the southerly littoral drift which has resulted in the sediment starved nearshore area to the south; sand cover, therefore, is not sufficient to protect the till from erosion."); Tr. 415:18-416:1 (Thompson); Def.'s Br. 6. The process by which the blockage of littoral drift causes erosion is explained generally in a review co-authored by Dr. Grahame J. Larson, one of defendant's experts: The [sediment] in the shorezone is . . . moved along the shore by waves and offshore currents in longshore transport (Lawrence 1994). However, two recent types of human intervention have seriously reduced the supply of [sediment] to the shore zone and facilitated the loss of [sediment] to deeper water: (1) dams on rivers that are tributary to the Great Lakes, and most importantly (2) jetties and other engineering structures at river mouths. The effects of damming tributaries is obvious ­ sediment settles out in the relatively still water of inland reservoirs and is not allowed to be transported to the Great Lakes shore. Jetties function differently. They are engineering structures erected at river mouths, resembling two long walls that border both sides of the river and extend from the river banks and mouth, just inland of a harbor, to relatively deep waters in the lake proper. Jetties affect beach replenishment by diverting sand and other sediments that move along the shore by lake processes, into deep water14 . . . . [T]hese sediments can no longer be transported to the beach by waves and are therefore permanently lost from the beach system. For this reason, coastal erosion is often most severe near harbor structures, rather than at more "open" coasts. Dredging of river mouths for shipping and boating purposes can facilitate further transport of . . . sediment into deep water.

The emphasized words in Plaintiffs' Exhibit (PX) 101 (REVIEW Origin and Evolution of the Great Lakes) 537 are in dispute. Compare Tr. 1039:9-1041:18 (Larson) with Pls.' Br. 2627. It is not disputed by either party that jetties divert sediment moving along the shore such that the sediment is removed from the littoral zone. See Pls.' Br. 26-27; Defendant's Post-Trial Brief (Defendant's Brief or Def.'s Br.) 6. Both parties also agree that at least some of that sediment is trapped against the jetties, but it is disputed whether some sediment moves to deep water. See Pls.' Br. iv; Plaintiffs' Response to Defendant's Post Trial Brief (Plaintiffs' Response or Pls.' Resp.) 12; Tr. 1171:8-11 (Nairn); see Part IV.C.2.c.

14

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Once the main source of [sediment] to the beach system, river mouths and harbors have now become sites of beach impoverishment. Thus, shoreline erosion or retrogression, a natural process, has been much more dominant than has shoreline progradation (Powers 1968), and should be considered, when development along the always-variable Great Lakes shorelines is contemplated. PX 101 (REVIEW Origin and Evolution of the Great Lakes) 537 (citations omitted, emphasis added); Tr. 1039:9-1041:18 (Larson); Pls.' Br. 26-27. In other words, constant sediment transport acts as a source of sediment for the shoreline; when sediment transport is blocked, the shoreline downdrift cannot be replenished, and it recedes. Tr. 1039:5-8 (Larson) ("[I]f you block the littoral drift, the [sediment] keeps going in one direction and no re-supply comes from the other direction."); Pls.' Br. 26; PX 41 (Annual Report on the Section 111 Beach Nourishment Monitoring Program (1999 Report)) 3 ("At several of the older harbors, it is theorized that this long period of [sediment] removal from the littoral system may have created an enormous deficit in the [sediment] supply, triggering lake bed downcutting that may have contributed to the creation of areas of severe and continuing erosion."); Pls.' Br. 11; Tr. 436:15-437:16 (Thompson) (The jetties' "blocking [of] net littoral drift" results in "removal of material from the littoral system."). The Corps released a series of reports (collectively, Corps Reports) over several decades describing the erosion caused south of St. Joseph Harbor by the jetties, outlining a plan to mitigate the erosion attributable to the jetties, and evaluating the effectiveness of the mitigation program that was eventually implemented. The Corps Reports were admitted into evidence as the following plaintiffs' exhibits: PX 132, titled "Berrien County, Michigan, Beach Erosion Control Study" (1958 Study); PX 93 (1973 Report); PX 22 (1974 Report); PX 94, titled "Effects of Breakwater Construction on Littoral Transport Along the State of Michigan Shoreline" (1983 Report); PX 32, titled "Interim Monitoring Report for St. Joseph Harbor, Michigan for the Period 1975-1984" (Interim Report 1975-1984); PX 33 (1992 Pilot Study); PX 114, titled "Coastal Engineering Technical Note" from 1992 (1992 Note); PX 23 (1996 Report); PX 24 (1997 Report); and PX 41(1999 Report). The 1973 Report has been described, without contradiction, as "the first credible look at the St. Joseph Harbor structures in estimating the total amount of material trapped by the structures." Tr. 80:19-23 (Meadows). After the 1973 Report, the Corps implemented a mitigation program to reverse or slow down shoreline erosion. PX 24 (1997 Report) 5. The 1999 Report states, "The effectiveness of the . . . program is dependent on how well it duplicates the normal littoral processes." PX 41 (1999 Report) 3. In an attempt to duplicate the littoral process, the Corps' program tries to replace the sediment removed from the littoral system by the jetties. Tr. 180:1-4 (Chrzastowki). 15

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The 1973 Report describes the remediation program, which comprises the creation of "feeder beaches" south of the harbor. PX 93 (1973 Report) 46. Material dredged from the harbor entrance and brought in from outside of the littoral system is placed on the feeder beaches in order to be dispersed into the littoral zone. See PX 93 (1973 Report) 49-50; Tr. 180:5-13 (Chrzastowki). This is to provide "annual nourishment equal to the amount of material [that] is interrupted or diverted into deep water." PX 93 (1973 Report) 46. The feeder beach located at Lions Park, immediately south of the harbor, Tr. 348:6-7 (Selegean), appears to be the main effort by the Corps at mitigation, see Defendant's Exhibit (DX) 34 (St. Joseph Dredging) 2 (indicating that most of the material placed in the littoral zone is placed at Lions Park), but there have been other temporary projects, see, e.g. Tr. 246:12-247:7 (Wineberg) (describing the Corps' 1976 feeder beach located on one of plaintiffs' properties); PX Summary Tab 4, 61; Pls.' Br. 14; Tr. 347:24348 (Selegean) (testifying that "the initial quantities were to be split between three different nourishment sites"); PX 93 (1973 Report) 46. In order to understand the the processes of sediment removal from the littoral system, to quantify the amount removed by the jetties, and to quantify the amount of sediment that needs to be replaced, scientists calculate a sediment budget, "[a]n accounting procedure to keep track along the shoreline of sediment inputs and sediment losses." Tr. 112:25-113:3 (Meadows). Therefore, an important step to implementing the mitigation program was to calculate the sediment removed yearly from the littoral system by the jetties. See Tr. 668:18-669:1 (Selegean). Because the net littoral drift was to the south, the authors of the 1973 Report calculated the longshore sediment transport rate by adding the amount of sediment trapped against the north jetty15 to the amount of sediment that traveled around the north jetty and became trapped in the outer harbor,16 which was ultimately dredged. See id. In a study dated May, 2006, Dr. Nairn of W.F. Baird & Associates Limited provided his "Assessment of the Causes of Erosion in the Vicinity of St. Joseph Harbor, Michigan" (Nairn Report). DX 1 (Nairn Report). The Nairn Report is the basis of defendant's case and attempts to demonstrate that key features of the previous Corps Reports, particularly the 1973 Report, are in error. See generally DX 1 (Nairn Report);

The area next to a jetty that accumulates sediment is known as a "fillet." Tr. 44:10-14 (Meadows); Tr. 1250:15-17 (Nairn). The outer harbor is a flared area, Tr. 1250:22-24 (Nairn), just beyond the end of the jetties, see Tr. 331:4-19 (King); PX 116 (Record of Construction FY05 Maintenance Dredging St. Joseph Harbor, Michigan (2005 Record of Construction)); Tr. 334:1-11 (King). 16
16

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Def.'s Br. passim; Def.'s Resp. passim. Critically important support to the Nairn Report is provided by a study by Dr. Larson of the Department of Geological Sciences at Michigan State University, explained in "Geology and Long-Term Lakeshore Erosion in the Vicinity of St. Joseph, Michigan" (Larson Report), dated May of 2006. See generally DX 3 (Larson Report); Def.'s Br. passim; Def.'s Resp. passim. Because the Corps Reports and testimony based on the Corps Reports form the foundation of most of plaintiffs' arguments, see generally Pls.' Br. passim; Pls.' Resp. passim; Pls.' Mem. passim, alleged errors in the Corps Reports are the main points of dispute in the case. These issues are summarized as follows: 1. The threshold issue is the extent of the zone that St. Joseph Harbor influences and whether that zone of influence includes plaintiffs' properties.17 See infra Part IV.A. Based primarily on several of the Corps Reports, plaintiffs argue that the kind of material used as nourishment is not proper for mitigation purposes and may, in fact, exacerbate erosion. Defendant, with support from Dr. Nairn and Dr. Larson, argues that the Corps Reports erred in concluding that the lake bottom and shore in the vicinity of plaintiffs' properties is not sandy. Thus, defendant argues, the Corps used appropriate nourishment for an area with a sandy geology. See infra Part IV.B. The Nairn Report attempts to demonstrate that the sediment transport rate blocked by the jetties was improperly calculated by the 1973 Report and argues that the amount of sediment that needs to be replaced yearly is much lower than previously believed by the Corps and now asserted by plaintiffs. See infra Part IV.C. Several of the Corps Reports cited by plaintiffs indicate that the location of the main feeder beach at Lions Park is problematic because the conditions in that area inhibit dispersal of much of the beach nourishment to plaintiffs' zone. The Nairn Report attempts to provide an explanation of the processes at Lions Park to support the assertion by defendant that it is an effective location for a feeder beach. See infra Part IV.D.

2.

3.

4.

This issue was not argued by defendant. See Def.'s Br. passim; Defendant's Response to Plaintiffs' Post-Trial Brief (Def.'s Resp.) passim. The court believes that consideration of this issue is necessary, however, to its conclusions on the other issues. 17

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III.

Legal Authority A. Takings Pursuant the Fifth Amendment

The Fifth Amendment of the United States Constitution provides that private property shall not "be taken for public use, without just compensation." U.S. Const. amend. V. "As its language indicates, and as the Court has frequently noted, this provision does not prohibit the taking of private property, but instead places a condition on the exercise of that power. . . . [I]t is designed . . . to secure compensation in the event of otherwise proper interference amounting to a taking." First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 314-15 (1987); Narramore v. United States, 960 F.2d 1048, 1050 (Fed. Cir. 1992) (stating that the Fifth Amendment is a "tacit recognition of a preexisting power to take private property for public use" (quoting United States v. Carmack, 329 U.S. 230, 241 (1946)); Applegate I, 25 F.3d at 1581 ("The Amendment recognizes both the [f]ederal [g]overnment's right to take private property for public use and a property owner's right to just compensation."). When the government fails properly to compensate private property owners for a taking, this court has jurisdiction to enforce the owners' right to just compensation. Tucker Act, 28 U.S.C. § 1491; Applegate I, 25 F.3d at 1581. Plaintiffs have misconstrued the focus of takings jurisprudence. Plaintiffs argue that the Corps "still think[s it has] an absolute right to swallow up private and public property without limit." Pls.' Mem. 11. The Corps does not have an absolute right to "swallow up private . . . property," but the limitation on this right is not on the amount of property "swallowed," but rather that the Corps owes compensation for the taking of property to which it had no prior rights. First English Evangelical Lutheran Church, 482 U.S. at 314-15; Narramore, 960 F.2d at 1050; Applegate I, 25 F.3d at 1581. Indeed, takings law has permitted entire parcels of property to be "swallowed up." See, e.g., Kelo v. New London, 545 U.S. 469 (2005) (upholding a ruling by the Supreme Court of Connecticut that a development agent be allowed to acquire plaintiffs' properties by eminent domain). A recent case before the Supreme Court outlines in detail the requirement that private property be taken only for "public use." U.S. Const. amend. V. In Kelo, a city approved a development plan calling for the construction of a hotel, restaurants, stores, residences, state parks, and office space in order to revitalize the surrounding economically depressed area. 545 U.S. at 473-74. Despite the fact that the government passed much of the property it took into private hands, the Court upheld the lower court's ruling that the taking had been for a public purpose. Id. at 473, 490. The Court reasoned 18

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that "a State may transfer property from one private party to another if future `use by the public' is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example." Id. at 477 (no citations in original). The public purpose requirement includes use of the taken property by the general public but is not confined to such use. Id. at 478-80 ("Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers."). The issue is whether the projected use of the taken land serves a "public purpose." Id. at 480. A purpose of creating an excess of 1,000 jobs, increasing tax and other revenues, and revitalizing an economically distressed city satisfied the "public purpose" requirement. Id. at 472, 490. Plaintiffs' argument that "[t]he Constitution's public purpose justification for taking does not exist here because the commercial landings served by the large ships which require deep passageways are privately owned for profit ­ not public," Pls.' Mem. 5-6, is thus inapposite. The fact of private ownership of the ships that benefit from St. Joseph Harbor does not defeat the public purpose of the St. Joseph Harbor. Kelo, 545 U.S. at 490; PX 93 (1973 Report) 39 (the navigational structures create "national and regional economic development and . . . social well-being in the Southwestern Michigan area. The economic benefits received from the navigation project are principally the savings in transportation costs in the receipt of bulk commodities such as coal, petroleum products, cement, limestone, and sand and gravel."). It is undisputed that the purpose of the construction of St. Joseph Harbor was to aid navigation, Pls.' Mem. 5-6; Def.'s Mot. 5, and this court has discussed in a detailed opinion at an earlier stage in this litigation that the federal government has the power to improve navigable waterways, including the area of St. Joseph. Banks (scope) I, 68 Fed. Cl. at 531-32. The parties are bound by the law in that opinion and the court does not now revisit the question of the appropriateness of improvements on Lake Michigan and St. Joseph River for the purpose of navigation.18 The court does not credit plaintiffs' arguments that "[t]he jetties do not create navigability," Pls.' Mem. 4, that "there is no navigational sovereignty," id. at 5, and that "[t]he three commercial landings in St. Joseph don't qualify for federal harbor status (and thus dredging) because they handle much less than the 1 million tons of cargo per year required." id. at 6. Plaintiffs never even attempt to reconcile their "public purpose" arguments with the fact that all of their claims rely on the Takings Clause of the Constitution, a clause which, the Supreme Court recently noted, "presupposes that the government has acted in pursuit of a valid public purpose." Lingle v. Chevron U.S.A., 544 U.S. 528, 543 (2005). The Supreme Court has recognized that the government may take private property
18

For an analysis of the law of the case doctrine, refer to footnote 6 in Part I. 19

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either by physical invasion or by regulation. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1014-15 (1992) (stating that the Fifth Amendment was interpreted to apply only to physical takings until 1922, when the Supreme Court stated that a regulation that "goes too far" will be recognized as a taking (citation omitted)). A physical taking occurs "when the government encroaches upon or occupies private land for its own proposed use." Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982) (holding that "a permanent physical occupation authorized by the government is a taking"). Regulatory takings, on the other hand, occur "when government action, although not encroaching upon or occupying private property, still affects and limits its use to such an extent that a taking occurs." Cienega Gardens v. United States, 265 F.3d 1237, 1244 (Fed. Cir. 2001) (citations omitted). Defendant is correct in stating that, in many aspects, "[t]he liability considerations differ markedly for these two categories, and it is `inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a `regulatory taking,' and vice versa.'" Def.'s Resp. 2 (citing TahoeSierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 323 (2002); Casitas Mun. Water Dist. v. United States, 76 Fed. Cl. 100, 105 (2007)). It is undisputed that an alleged taking by erosion falls under the category of a physical taking, see, e.g., Boling v. United States, 220 F.3d 1365, 1373 (Fed. Cir. 2000); Applegate v. United States (Applegate II), 35 Fed. Cl. 406 (1996), and thus plaintiffs' extensive reliance on regulatory takings cases to argue that there be a nexus and proportionality between plaintiffs' property losses and navigation is inapposite, Def.'s Resp. 2 (citing Pls.' Br. 35-36 (citing Dolan v. Tigard; 512 U.S. 373 (1994); Nollan v. Cal. Coastal Comm'n, 483 U.S. 825 (1987))); Pls.' Mem. 5. The Federal Circuit explains in relevant part that, to argue a taking successfully, be it regulatory or physical, "a property owner must prove that the asserted government invasion of property interests allegedly effecting a taking . . . was `the direct or necessary result' of the act" or "within contemplation of or reasonably to be anticipated by the government." Vaizburd v. United States, 384 F.3d 1278, 1282-83 (Fed. Cir. 2004) (citation omitted); Applegate II, 35 Fed. Cl. at 413-14. Implicit in this test is that, before a plaintiff can pursue a takings claim against the United States, he or she must first prove ownership of the property allegedly taken. See Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1212 (Fed. Cir. 2005); Wyatt v. United States, 271 F.3d 1090, 1096-97 (Fed. Cir. 2001), cert. denied, 535 U.S. 1077 (2002). "In a physical takings case, the inquiry is limited to whether the claimant can establish a physical occupation . . . of his property by the Government." Applegate II, 35 Fed. Cl. at 414 (citing Loretto, 458 U.S. at 441). Physical injury to real property substantially contributed to by a public improvement suffices to establish physical occupation. Loretto, 458 U.S. at 441. Erosion of property due to government action is one example of physical injury that rises to the 20

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level of a taking. See, e.g., Boling, 220 F.3d at 1373; Applegate II, 35 Fed. Cl. at 414. For reasons of efficiency, the court has left the questions of specific property ownership and damages to be determined after trial of causation. Banks Pretrial Transcript (Pretrial Tr.) 174:5-176:2.19 The parties do not dispute that St. Joseph Harbor causes erosion and that erosion has occurred in the area of plaintiffs' zone. Pls.' Br. 2627; Def.'s Br. 6. The disputed issue in this case, therefore, is whether the government's actions effectively offset the effects of St. Joseph Harbor on plaintiffs' zone such that the erosion in plaintiffs' zone is not attributable to the government. B. Burden of Proof

Defendant is correct in stating that "[p]laintiffs bear the burden of proof in civil proceedings." Def.'s Br. 5. Plaintiffs meet that burden only if they establish by a preponderance of the evidence the cause of action for which they have sued. The United States Court of Appeals for the Federal Circuit has "defined preponderance of the evidence in civil actions to mean `the greater weight of evidence, evidence which is more convincing than the evidence which is offered in opposition to it.'" Jazz Photo Corp. V. United States, 439 F.3d 1344, 1350 (Fed. Cir. 2006) (citing Hale v. Dep't of Transp., Fed. Aviation Admin., 772 F.2d 882, 885 (Fed. Cir. 1985); see also St. Paul Fire & Marine Ins. Co. v. United States, 6 F.3d 763, 769 (Fed. Cir. 1993) (same). C. Admissions and Expert Testimony

The Federal Rules of Evidence (FRE) make admissible for the truth of the matter asserted admissions made by party-opponents. See Fed. R. Evid. 801(d)(2). Admissions by a party-opponent are an exception to the general prohibition on hearsay, defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Id. at 801(c). Specifically, the statement must be offered against a party and must fall into one of the following categories: 1) the statement is the party's own statement in either an individual or representative capacity; 2) the statement is one of which the party has manifested an adoption or belief in its truth; 3) the statement was made by a person authorized by the party to make a statement concerning the subject; or 4) the statement is one by the party's agent or servant concerning a matter within the scope of the agency or employment, made

Arguments from plaintiffs about the scope of damages, therefore, are inapposite. See, e.g., Pls.' Br. 36-37. 21

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Filed 09/28/2007

Page 22 of 85

during the existence of the relationship. Id. at 801(d)(2).20 Therefore, an out-of-court statement of a party-opponent offered for its truth is admissible at trial providing that it conforms with Federal Rule of Evidence 801(d)(2). The following exhibits, consisting in the main of the Corps Reports that form the basis of plaintiffs' arguments, constitute admissions under FRE 801(d)(2) because they meet the requirements of that rule: PX 132 (1958 Study); PX 93 (1973 Report); PX 22 (1974 Report); PX 94 (1983 Report); PX 32 (Interim Report 1975-1984); PX 33 (1992 Pilot Study); PX 114 (1992 Note); PX 23 (1996 Report); PX 24 (1997 Report); PX 41(1999 Report); PX 96 21 (Corps Finding of No Significant Impact); and PX 113, titled "Great Lakes Coastal Geology and Coastal Engineering, Southeastern Lake Michigan 30 April 1994" (1994 Site Visit).22 First, the exhibits were offered by plaintiffs in evidence to prove the truth of the matter asserted, that is, to prove the truth of the statements that the reports themselves contain. Second, plaintiffs offered those documents against its party-opponent, defendant. Finally, the statements contained in these documents qualify as defendant's own statements because they are reports issued by the United States. The studies not issued directly by an agency of the United States and instead issued by a A fifth category relating to statements of co-conspirators has been omitted from this discussion as irrelevant. See Fed. R. Evid. 801(d)(2). Plaintiffs' Exhibit 96 consists of two documents, a title page to a Corps document titled "Finding of No Significant Impact" and a document titled "Glacial Tills Under Lake Michigan" by the Illinois State Geological Survey in 1974. See PX 96. Although Dr. Nairn did not seem to be familiar with the document, in examining PX 96, Dr. Nairn appeared to distinguish the two documents by describing the section entitled "Glacial Tills Under Lake Michigan," which was "[a]side from the cover page." Tr. 1267:9-15 (Nairn). This cover page is the Corps document, "Finding of No Significant Impact." PX 96. The court has not found a connection between those two documents on their face or in the testimony, see id.; Tr. 1267:9-15 (Nairn), and therefore distinguishes them in its citations as follows: PX 96 (Corps Finding of No Significant Impact) and PX 96 (Illinois State Geological Survey). This distinction is relevant in that the former could constitute, if relevant to the case, an admission by defendant, whereas the latter cannot be ascribed to defendant. Plaintiffs' Exhibit 113 is divided into two sections, "Itinerary - Day 1" and "Itinerary Day 2," both numbered independently. See PX 113 (Great Lakes Coastal Geology and Coastal Engineering, Southeastern Lake Michigan 30 April 1994 (1994 Site Visit)). When relevant, this Opinion will specify which section it is referring to. Plaintiffs' Exhibit 113 is a guide to a site visit in 1994. Tr. 451:14-16 (Thompson) (citing PX 113 (1994 Site Visit)). The Corps sponsored the site visit. Id. at 457:2-4 (Thompson) (citing PX 113 (1994 Site Visit)). 22
22 21 20

Case 1:99-cv-04451-ECH

Document 245

Filed 09/28/2007

Page 23 of 85

private entity hired by the government for the purpose of studying and submitting a report on the erosion at St. Joseph qualify as statements made "by a person authorized by the party to make a statement concerning the subject." Fed. R. E