## Facts

- Property owners in St. Bernard Parish, Louisiana, and New Orleans’s Lower Ninth Ward alleged their properties were flooded and damaged during Hurricane Katrina (2005) and other hurricanes.
- Plaintiffs attributed increased storm surge and wetland loss to the federal construction and operation of the Mississippi River–Gulf Outlet (MRGO), a navigation channel built through coastal wetlands near New Orleans.
- Plaintiffs also alleged government inaction—failure to maintain, modify, or close MRGO—contributed to the flooding.
- Plaintiffs sued the United States in the Court of Federal Claims under the Tucker Act, asserting a Fifth Amendment takings claim based on flooding.
- The Court of Federal Claims held a compensable taking occurred and awarded just compensation.
- The United States appealed; plaintiffs cross-appealed.
- The Federal Circuit reversed, concluding the trial court applied an incorrect takings causation analysis and that plaintiffs did not establish a compensable taking.

## Issues

1. Whether the United States can incur Fifth Amendment takings liability based on alleged inaction (failure to maintain, modify, or close MRGO).
2. Whether causation for a flooding-as-taking claim must account for the net effect of all relevant federal actions, including flood-control projects that reduce flood risk.
3. Whether plaintiffs proved that the construction and operation of MRGO, as affirmative government action, caused the complained-of flooding in the constitutionally required sense.

## Decision

- The Federal Circuit reversed the judgment awarding just compensation.
- The court held the government cannot be liable on a takings theory for inaction.
- The court held the Court of Federal Claims used an improper causation approach by failing to consider the risk-reducing effects of federal flood-control projects as part of the causation inquiry.
- The court concluded plaintiffs did not prove that MRGO’s construction and operation, evaluated under the correct standard and in the context of other federal projects, was the legal cause of the flooding.
- Because no compensable taking was shown, plaintiffs recovered nothing on the takings claim.

## Legal Principles

- The Takings Clause requires government action that takes property; alleged failures to act (including failure to maintain or modify infrastructure) do not, without more, support takings liability.
- For flooding to constitute a taking, plaintiffs must show (1) government action was the cause-in-fact of the invasion and (2) the invasion was the direct, natural, or probable result of that action (as applied in Federal Circuit precedent).
- Causation in flooding takings cases must consider the overall, net effect of relevant federal projects, including flood-control measures that may mitigate flooding risk.
- Claims framed as negligent operation, mismanagement, or failure to maintain infrastructure are generally tort-like and are not converted into takings claims absent the required causal showing tied to affirmative government action.

## Conclusion

The Federal Circuit rejected takings liability for alleged government inaction concerning MRGO and required a causation analysis that accounts for the net impact of federal projects on flood risk; applying that framework, it found plaintiffs failed to prove MRGO’s construction and operation legally caused the hurricane flooding, and it reversed the compensation award.


St. Bernard Parish Government v. United States, 887 F.3d 1354 (Fed. Cir. 2018)