`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`EDGAR ABLAN, ET AL.,
`Plaintiffs
`
`CHRISTINA BANKER, TODD BANKER
`Plaintiffs-Appellees
`
`v.
`
`UNITED STATES,
`Defendant-Appellant
`______________________
`
`2023-1363
`______________________
`
`Appeal from the United States Court of Federal Claims
`in Nos. 1:17-cv-01409-CFL, 1:17-cv-09001-CFL, Senio r
`Judge Charles F. Lettow.
`
`-------------------------------------------------
`
`SANDRA ABDOU, ET AL.,
`Plaintiffs
`
`ELIZABETH BURNHAM
`Plaintiff-Appellee
`
`v.
`
`UNITED STATES,
`Defendant-Appellant
`______________________
`Case: 23-1363 Document: 83 Page: 1 Filed: 12/22/2025
`
`
`
`
`
`
`
`ABLAN v. US 2
`
`2023-1365
`______________________
`
`Appeal from the United States Court of Federal Claims
`in Nos. 1:17-cv-01789-CFL, 1:17-cv-09001-CFL, Senio r
`Judge Charles F. Lettow.
`
`-------------------------------------------------
`
`CHRISTINA MICU, AND ALL OTHERS SIMILARLY
`SITUATED, SCOTT HOLLAND, CATHERINE
`POPOVICI, KULWANT SIDHU,
`Plaintiffs-Cross-Appellants
`
`ELISIO SOARES, SANDRA GARZA RODRIGUEZ,
`ERICH SCHROEDER, MARINA AGEYEVA, GLENN
`PETERS, VIRGINIA HOLCOMB,
`Plaintiffs
`
`v.
`
`UNITED STATES,
`Defendant-Appellant
`______________________
`
`2023-1366, 2023-1412
`______________________
`
`Appeals from the United States Court of Federal
`Claims in Nos. 1:17-cv-01277-CFL, 1:17-cv-09001-CFL ,
`Senior Judge Charles F. Lettow.
`______________________
`
`Decided: December 22, 2025
`______________________
`
`Case: 23-1363 Document: 83 Page: 2 Filed: 12/22/2025
`
`
`
`
`
`
`
`ABLAN v. US 3
`ROGER J. MARZULLA , Marzulla Law, LLC, Washington,
`DC, argued for all plaintiffs-appellees. Also represented by
`NANCIE GAIL MARZULLA . Plaintiffs-appellees Christina
`Banker, Todd Banker also represented by V UK
`VUJASINOVIC , VB Attorneys, PLLC, Houston, TX. Plaintiff-
`appellee Elizabeth Burnham also represented by E DWIN
`ARMISTEAD EASTERBY , I, The Easterby Law Firm, P.C.,
`Houston, TX.
`
` IAN HEATH GERSHENGORN , Jenner & Block LLP, Wash-
`ington, DC, argued for plaintiffs-cross-appellants. Also
`represented by E LIZABETH B. DEUTSCH ; D ANIEL H.
`CHAREST , Burns Charest LLP, Dallas, TX; C HARLES
`IRVINE , Irvine & Conner PLLC, Houston, TX; E MERY
`LAWRENCE VINCENT , Sorrels Law, Dallas, TX.
`
` BRIAN C. TOTH , Appellate Section, Environment and
`Natural Resources Division, United States Departmen t of
`Justice, Washington, DC, argued for defendant-appel lant.
`Also represented by TODD KIM .
` ______________________
`
`Before REYNA , TARANTO , and CUNNINGHAM , Circuit
`Judges .
`CUNNINGHAM , Circuit Judge .
`Appellees 1 and Cross-Appellants 2 (collectively, “Plain-
`tiffs”) owned property interests upstream of the Ad dicks
`and Barker Dams in Houston, Texas. The Army Corps of
`Engineers (“the Corps”) designed and operated these dams
`with the goal of preventing flooding in downtown Ho uston
`during storms. Plaintiffs allege that the protocol adopted
`
`1 Christina Banker, Todd Banker, and Elizabeth
`Burnham.
`2 Christina Micu, Scott Holland, Catherine Popovici,
`and Kulwant Sidhu.
`Case: 23-1363 Document: 83 Page: 3 Filed: 12/22/2025
`
`
`
`
`
`
`
`ABLAN v. US 4
`by the Corps included using all available reservoir storage
`to protect downtown Houston, even at the cost of fl ooding
`private lands. When Hurricane Harvey struck in 201 7,
`Plaintiffs’ properties flooded, and they subsequent ly sued
`the government in the United States Court of Federa l
`Claims.
`The Court of Federal Claims found the government li -
`able for taking permanent natural-disaster flowage ease-
`ments across Plaintiffs’ properties. See In re Upstream
`Addicks & Barker (Tex.) Flood-Control Reservoirs ,
`146 Fed. Cl. 219, 264 (2019) (“ Liability Decision ”). After
`the liability trial, Plaintiffs moved to certify a class for lia-
`bility purposes. The Court of Federal Claims denie d class
`certification based on the untimeliness of Plaintiffs’ motion
`and the criteria for certification. See In re Upstream Ad-
`dicks & Barker (Tex.) Flood-Control Reservoirs , 157 Fed.
`Cl. 189, 193 (2021) (“ Class Certification Decision ”). The
`Court of Federal Claims then selected six bellwether prop-
`erties for a damages trial, where it awarded a tota l of
`$454,535.03, plus interest from the date of taking. In re
`Upstream Addicks & Barker (Tex.) Flood-Control Rese r-
`voirs , 162 Fed. Cl. 495, 534 (2022) (“ Damages Decision ”).
`The government appeals the Liability Decision ,
`arguing that its operation of the dams was not a ta king.
`Cross-Appellants appeal the Class Certification Decision ,
`contending that their motion was timely. Both the
`government and Cross-Appellants appeal the Damages
`Decision ; the government contends that the Court of
`Federal Claims erroneously awarded “consequential
`damages” for leasehold advantage, lost rent, displacement,
`and damaged personal property. Meanwhile, Cross-
`Appellants contend that the Court of Federal Claims erred
`by offsetting generally available Federal Emergency
`Management Agency (“FEMA”) relief and by awarding
`Ms. Popovici $0 for a permanent flowage easement on her
`property. We affirm the decisions of the Court of Federal
`Claims as to liability and class certification. Wi th respect
`Case: 23-1363 Document: 83 Page: 4 Filed: 12/22/2025
`
`
`
`
`
`
`
`ABLAN v. US 5
`to damages, we affirm the decision as to leasehold
`advantage, damaged personal property, and offsettin g of
`FEMA relief, but vacate the decision as to lost ren t,
`displacement, and the valuation of Ms. Popovici’s
`easement.
`I. B
`ACKGROUND
`A.
`Houston sits at the confluence of Buffalo Bayou and
`White Oak Bayou, at the base of a system of streams that
`flow through a flat plain. Liability Decision at 228–29;
`J.A. 8395–96 ¶¶ 5–9. The area features soil that d oes not
`drain well, and the streams are subject to flooding during
`frequent storms. Liability Decision at 229; J.A. 8396
`¶¶ 7–8. Major storms in 1929 and 1935 resulted in exten-
`sive property damage and loss of life. Liability Decision
`at 229; J.A. 8254; J.A. 8397–98 ¶¶ 10–11; J.A. 8786. In the
`aftermath of the storms, Congress authorized the Corps to
`reduce downstream flood risk by designing and build ing
`the Addicks and Barker Dams as part of the Buffalo Bayou
`and Tributaries, Texas Project. Liability Decision at 230;
`An Act Authorizing the construction, repair, and preserva-
`tion of certain public works on rivers and harbors, and for
`other purposes, Pub. L. No. 75-685, 52 Stat. 802, 8 04
`(1938); see also J.A. 8450; J.A. 8790; J.A. 9884–85 ¶ 4. The
`Corps completed the dams in 1948. Liability Decision
`at 231; J.A. 8454–55. The reservoirs of the Addick s and
`Barker Dams are typically dry but fill with water w hen it
`rains to prevent or reduce downstream flooding. Liability
`Decision at 239; J.A. 8476–89.
`During the planning of the Addicks and Barker Dams,
`the Corps considered buying all upstream land withi n the
`dams’ reservoirs that would be inundated in the eve nt of
`“the design storm rainfall of 31.4 inches.” Liability Deci-
`sion at 232 (quoting J.A. 9907 ¶ 54). However, the Cor ps
`“considered it ‘unnecessary to acquire lands to the pool el-
`evation which would be produced by the design storm.’” Id.
`Case: 23-1363 Document: 83 Page: 5 Filed: 12/22/2025
`
`
`
`
`
`
`
`ABLAN v. US 6
`(quoting J.A. 9907 ¶ 54). Instead, the Corps recommended
`purchasing only part of that land, namely, the part that
`would be inundated even in smaller storms, contendi ng
`that “the savings in annual interest would be in ex cess of
`the probable damages” from the design storm or othe r
`larger storms. J.A. 9907–08 ¶ 54; Liability Decision
`at 231–33. Accordingly, the government purchased o nly
`some of the lower-lying land within the reservoirs of the
`Addicks and Barker Dams. Liability Decision at 231–33;
`J.A. 1044–45 ¶¶ 94, 99, 102, 104. The Corps recogn ized
`that this decision “w[ould] eventually place the [g ]overn-
`ment in the position of having to flood the area wi thin the
`reservoir with the accompanying damages in order to pro-
`tect downstream improvements in the event of a severe fu-
`ture storm.” Liability Decision at 234 (quoting J.A. 8864).
`On August 25, 2017, Hurricane Harvey made landfall
`along the coast of Texas as a Category 4 hurricane. Liabil-
`ity Decision at 240; J.A. 1045 ¶ 107. Hurricane Harvey
`stalled over the Houston area as a tropical storm f or four
`days. Liability Decision at 240; J.A. 1045 ¶ 108. The storm
`involved historic amounts of rainfall, with an average four-
`day rainfall of approximately 31 inches in the Addicks and
`Barker watersheds. J.A. 9740; J.A. 9746; see Liability De-
`cision at 240. As a result, the flood pools reached reco rds
`of 101.6 feet in the Barker Dam reservoir and 109.1 feet in
`the Addicks Dam reservoir. Liability Decision at 241;
`J.A. 1045–46 ¶¶ 110–15. The reservoir water thus c ould
`not be contained on government-owned land and flood ed
`onto privately-owned land within the reservoirs, ca using
`extensive damage. Liability Decision at 241; J.A. 8017;
`J.A. 8023.
`B.
`Numerous property owners filed complaints in the
`Court of Federal Claims, alleging that the operation of the
`Barker and Addicks Dams and the subsequent flooding
`constituted an uncompensated physical taking of the ir
`Case: 23-1363 Document: 83 Page: 6 Filed: 12/22/2025
`
`
`
`
`
`
`
`ABLAN v. US 7
`property. Liability Decision at 228. The Chief Judge of the
`Court of Federal Claims consolidated the cases into a Mas-
`ter Docket, then split them into an Upstream Sub-Ma ster
`Docket and a Downstream Sub-Master Docket. Liability
`Decision at 228; see Milton v. United States , 36 F.4th 1154,
`1159 (Fed. Cir. 2022).
`The Court of Federal Claims bifurcated the liabilit y
`and damages issues and selected, for a liability tr ial, thir-
`teen bellwether properties as representative of the up-
`stream properties at issue in cases belonging to th e
`Upstream Sub-Master Docket. Liability Decision
`at 227–28. After a ten-day trial, the Court of Fed eral
`Claims found the government liable for a Fifth Amendment
`taking of a flowage easement on all thirteen properties. Id.
`at 228. The Court of Federal Claims held that Plai ntiffs
`possessed cognizable property interests, id. at 248–49, that
`the government took flowage easements on those prop er-
`ties, id. at 249–63, and that the government’s asserted de-
`fenses of police power and necessity did not absolv e it of
`liability. Id. at 263–64.
`After the liability phase concluded, Plaintiffs moved to
`certify a class for liability purposes. The Court of Federal
`Claims denied the motion, holding that “a trial on the mer-
`its of liability is a line after which moving for c lass certifi-
`cation is presumptively inappropriate.” Class Certification
`Decision at 196. The Court of Federal Claims further held
`that the “timing of plaintiffs’ class certification motion”
`would “undermine the adequacy of representation and su-
`periority of class certification” under Court of Fe deral
`Claims Rule (“RCFC”) 23. Id. at 197.
`The Court of Federal Claims selected six of the thirteen
`bellwether upstream properties for a compensation t rial.
`Damages Decision at 502. Ultimately, the Court of Federal
`Claims awarded Plaintiffs amounts between $1,401.49 and
`$195,549.86, for a total of $454,535.03, plus inter est. Id.
`at 534. The Court of Federal Claims awarded all Plaintiffs,
`Case: 23-1363 Document: 83 Page: 7 Filed: 12/22/2025
`
`
`
`
`
`
`
`ABLAN v. US 8
`except Ms. Popovici, compensation for the taking of a per-
`manent flowage easement as measured by the diminuti on
`in value of their properties from the government’s flooding
`of their properties in response to future Harvey-li ke
`storms. Id. at 520–26; see id. at 530. The Court of Federal
`Claims awarded various Plaintiffs, including Ms. Popovici,
`compensation for structural repairs, replacement of per-
`sonal property, displacement costs (including, for
`Mr. Sidhu, the loss of rental value of condo units), and loss
`of leasehold advantage. Id. at 526–31. To avoid duplica-
`tive recovery, the Court of Federal Claims reduced Plain-
`tiffs’ compensation by the amount of FEMA emergency
`relief that they received. Id. at 531–33.
`These appeals, which cover those upstream plaintiff s
`designated as bellwethers for both liability and da mages
`purposes, followed. We have jurisdiction pursuant to
`28 U.S.C. § 1295(a)(3).
`II. S
`TANDARD OF REVIEW
`“Whether a taking has occurred is a question of law
`based on factual underpinnings.” Stearns Co. v. United
`States , 396 F.3d 1354, 1357 (Fed. Cir. 2005). We review de
`novo the legal conclusions of the Court of Federal Claim s
`while reviewing its factual findings for clear error. Id. We
`review the denial of a motion to certify a class fo r abuse of
`discretion. Consol. Edison Co. of N.Y., Inc. v. Richardson ,
`233 F.3d 1376, 1379 (Fed. Cir. 2000).
`III. DISCUSSION
`We address in turn: (1) the government’s appeal of the
`liability decision; (2) Cross-Appellants’ appeal of the denial
`of class certification; and (3) the respective appe als of the
`damages decision. We affirm as to the liability an d class
`certification decisions. As related to the damages decision,
`we affirm as to leasehold advantage, damaged person al
`property, and offsetting of FEMA relief, but vacate as to
`Case: 23-1363 Document: 83 Page: 8 Filed: 12/22/2025
`
`
`
`
`
`
`
`ABLAN v. US 9
`lost rent, displacement, and the valuation of Ms. Popovici’s
`easement.
`A.
`The government challenges the determination by the
`Court of Federal Claims that the operation of the A ddicks
`and Barker Dams constituted a taking. See Appellant’s
`Br. 20–55. The Fifth Amendment forbids the governm ent
`from taking private property “for public use, witho ut just
`compensation.” U.S. Const. amend. V. Courts must eval-
`uate two prongs in determining whether a government ac-
`tion constitutes a taking. “First, the court deter mines
`whether the claimant has identified a cognizable Fi fth
`Amendment property interest that is asserted to be the
`subject of the taking. Second, if the court concludes that a
`cognizable property interest exists, it determines whether
`that property interest was ‘taken.’” Acceptance Ins. Cos.
`v. United States , 583 F.3d 849, 854 (Fed. Cir. 2009).
`Courts also assess whether any defenses absolve the gov-
`ernment of liability. See TrinCo Inv. Co. v. United States ,
`722 F.3d 1375, 1377–80 (Fed. Cir. 2013). The gover nment
`argues that (1) Plaintiffs lacked cognizable proper ty inter-
`ests because any property interest was limited by t he gov-
`ernment’s inherent police power, Appellant’s Br. 45 –55;
`(2) any property interests were not taken, Appellan t’s
`Br. 20–45; and (3) the doctrine of necessity absolv es the
`government of any liability, Appellant’s Br. 49–51. We re-
`ject each of the government’s arguments.
`i.
`We start by determining whether Plaintiffs held cog -
`nizable property interests in flowage easements. T he
`Court of Federal Claims noted that “Plaintiffs are owners
`of private properties not subject to flowage easements” and
`that “[o]wnership of the properties by each plaintiff respec-
`tively and the lack of a previous flowage easement are not
`in dispute.” Liability Decision at 248–49. Nevertheless,
`the government contends that Plaintiffs lacked a
`Case: 23-1363 Document: 83 Page: 9 Filed: 12/22/2025
`
`
`
`
`
`
`
`ABLAN v. US 10
`compensable property interest because their land was held
`subject to the background understanding of governme nt
`police power and the Flood Control Act’s limit on g overn-
`ment liability. Appellant’s Br. 46–55. We disagree.
`As the government notes, we rejected versions of those
`arguments in Milton v. United States , 36 F.4th 1154
`(Fed. Cir. 2022). See Appellant’s Br. 49, 55 (indicating that
`the government raises these arguments “to preserve the is-
`sue[s] for further review”). In Milton , we squarely rejected
`the government’s argument that property rights were “held
`subject to the police power under federal law,” exp laining
`that the doctrine does not allow private property to be “sub-
`ject to unbridled, uncompensated qualification unde r the
`police power.” 36 F.4th at 1162. Rather, we explained that
`the doctrine of necessity serves as a defense precl uding li-
`ability. Id. Similarly, we held that the Flood Control Act
`does not render the government “immune from suits alleg-
`ing takings based on its flood control measures,” b ecause
`the Tucker Act’s waiver of sovereign immunity for t akings
`claims was not withdrawn in the Flood Control Act. Id.
`at 1160. While the latter holding was made in the context
`of jurisdiction, our recognition that takings liabi lity is not
`barred by the Flood Control Act controls this case. Cf. First
`Eng. Evangelical Lutheran Church of Glendale v. Cnt y. of
`Los Angeles , 482 U.S. 304, 316 n.9 (1987) (“Though arising
`in various factual and jurisdictional settings, the se cases
`make clear that it is the Constitution that dictates the rem-
`edy for interference with property rights amounting to a
`taking.”).
`To the extent that the government attempts to frame
`its position as arguing that the Flood Control Act should
`have led Plaintiffs to not expect compensation from the
`government for flowage easements, Appellant’s Br. 5 1–55,
`its argument still fails. “Congress may not overri de the
`provision that just compensation must be made when pri-
`vate property is taken for public use.” Scranton v. Wheeler ,
`179 U.S. 141, 153 (1900); see also Tyler v. Hennepin Cnty.,
`Case: 23-1363 Document: 83 Page: 10 Filed: 12/22/2025
`
`
`
`
`
`
`
`ABLAN v. US 11
`598 U.S. 631, 645 (2023) (“[A state] may not exting uish a
`property interest that it recognizes everywhere els e to
`avoid paying just compensation when it is the one doing the
`taking.”). Accordingly, we reject the government’s argu-
`ment that Plaintiffs’ property interests were limit ed by ei-
`ther the government’s inherent police power or the Flood
`Control Act, and hold that Plaintiffs had a cognizable prop-
`erty interest in flowage easements on their land.
`ii.
`We now examine whether any taking occurred. “When
`the government physically acquires private property for a
`public use, the Takings Clause imposes a clear and cate-
`gorical obligation to provide the owner with just compensa-
`tion.” Cedar Point Nursery v. Hassid , 594 U.S. 139, 147
`(2021). The government “effects a physical taking when it
`occupies property—say, by recurring flooding as a result of
`building a dam.” Id. at 148; see Ideker Farms, Inc.
`v. United States , 71 F.4th 964, 978 (Fed. Cir. 2023). How-
`ever, for cases involving so-called “temporary floo ding,”
`courts apply a “multi-factor test for determining i f tempo-
`rary government induced flooding is a taking rather than
`a mere trespass.” Ideker Farms , 71 F.4th at 978. Accord-
`ingly, courts start by determining whether the floo ding in
`a case would be (perhaps already was) recurring so as to be
`properly characterized as a permanent taking (even though
`the waters of each individual flood recede); if not , it is
`merely “temporary.” Id. at 979. We conclude that the
`Court of Federal Claims did not err in finding that the
`flooding was permanently recurring 3 and, in the
`
`3 The Court of Federal Claims issued its liability d e-
`cision prior to our issuance of Ideker Farms . Accordingly,
`it applied the full multi-factor test without the b enefit of
`our holding that permanently recurring “flooding that fore-
`seeably or intentionally results from government ac tion is
`
`Case: 23-1363 Document: 83 Page: 11 Filed: 12/22/2025
`
`
`
`
`
`
`
`ABLAN v. US 12
`alternative, that, even if the flooding were characterized as
`temporary, it would still constitute a taking.
`1.
`We hold that the flooding of Plaintiffs’ properties gave
`rise to a permanent taking. The Supreme Court has dis-
`tinguished between “intermittent but inevitably rec urring
`overflows,” which give rise to permanent takings, Ark.
`Game & Fish Comm’n v. United States , 568 U.S. 23, 32
`(2012) (quoting United States v. Cress , 243 U.S. 316, 328
`(1917)), and “takings temporary in duration,” id. at 32,
`such as when a claimant was able to permanently “‘r e-
`claim[ ] most of his land which the government orig inally
`took by flooding.’” Id. at 33 (quoting United States v. Dick-
`inson , 331 U.S. 745, 751 (1947)). Where “land is not co n-
`stantly but only at intervals overflowed, the fee m ay be
`permitted to remain in the owner, subject to an eas ement
`in the United States to overflow it with water as o ften as
`necessarily may result from the operation of the” d am.
`Cress , 243 U.S. at 329. Our predecessor court specifica lly
`
`a categorical physical taking.” Ideker Farms , 71 F.4th at
`981; cf. Liability Decision at 248 (“[T]he [multi-factor test]
`considerations remain relevant to the inquiry here, that is,
`whether the government’s actions with regard to Add icks
`and Barker constitute a compensable taking, albeit a per-
`manent one.”). However, the Court of Federal Claim s
`made numerous factual findings en route to its liability de-
`termination that adequately enable us to review its deci-
`sion under the proper legal framework. See Liability
`Decision at 250 (“The government, through its construc-
`tion, maintenance, and operation of the Addicks and
`Barker Dams in the past, present, and future, has taken a
`permanent flowage easement on plaintiffs’ properties.”); id.
`at 251 (citing the frequency of storms and testimony to find
`that “[t]he future recurrence of a similarly large storm, pro-
`ducing comparable rainfall, remains likely to occur again”).
`Case: 23-1363 Document: 83 Page: 12 Filed: 12/22/2025
`
`
`
`
`
`
`
`ABLAN v. US 13
`held that “only one actual flooding is enough when the
`property is upstream of the dam and below the contour line
`to which the dam is designed to impound water.” Stockton
`v. United States , 214 Ct. Cl. 506, 518–19 (1977). These
`cases confirm that whether flooding is inevitably recurring
`turns not on mere frequency, but on whether there i s a
`“government action that will foreseeably produce intermit-
`tent invasions by flooding without identifiable end into the
`future.” Ideker Farms , 71 F.4th at 979. When that is true,
`“the government takes a permanent right of access, akin to
`an easement in gross, even if used only intermittently,” and
`has effected a per se taking. Id. at 980.
`The Court of Federal Claims made factual findings that
`flooding of Plaintiffs’ properties was foreseeable and would
`inevitably reccur without identifiable end. The Co urt of
`Federal Claims found that “the Corps was aware or should
`have been aware since the initial construction of t he dams
`and at every point onward, that the flood pools in the Ad-
`dicks and Barker Reservoirs would at some point (an d
`thereafter) exceed the government-owned land, inundating
`private properties.” Liability Decision at 255. It found that
`the Corps understood that “storms of exceptionally large
`size were possible in the Houston metropolitan area ,” that
`“pools of this size and the attendant flooding of p rivate
`property were, at a minimum, objectively foreseeable,” and
`that Plaintiffs’ properties were “by government des ign,
`within the dams’ flood-pool reservoirs.” Id. at 254–56.
`Moreover, it found that “the sheer frequency of sig nificant
`storms . . . suggests that this was more than an is olated
`event, and that it is likely to recur.” Id. at 251.
`These findings are not clearly erroneous. There wa s
`ample record evidence that the Houston area was prone to
`large storms and that the Corps designed and operated the
`Addicks and Barker Dams knowing that pools exceedin g
`the government-owned land would form. See, e.g. ,
`J.A. 8786–87 (“Harris County has been subjected to at
`least 14 major storm events in the last 80 years . . . . [H]ad
`Case: 23-1363 Document: 83 Page: 13 Filed: 12/22/2025
`
`
`
`
`
`
`
`ABLAN v. US 14
`some of these events been centered over Addicks and
`Barker Reservoirs or the Upper Buffalo Bayou Watershed,
`the combined rainfall and runoff could have resulte d in
`flood pools exceeding the limits of government owne d
`land.”); J.A. 8398 ¶ 13 (“[O]nly chance has prevent ed the
`occurrence of a storm over the basin much larger th an the
`1935 storm.”); J.A. 8863–64 ¶ 4.2 (describing the i nevita-
`bility that the government will have “to flood the area
`within the reservoir with the accompanying damages in or-
`der to protect downstream improvements in the event of a
`severe future storm”). While the exact frequency of storms
`that would flood private property is unknowable, the Court
`of Federal Claims did not clearly err in holding th at the
`flooding at issue here was objectively foreseeable and
`would inevitably recur. Therefore, we conclude tha t the
`“permanent intermittent flooding” of Plaintiffs’ pr operties
`was “a physical taking subject to a per se rule,” Ideker
`Farms , 71 F.4th at 980, and hold that the government took
`permanent flowage easements in Plaintiffs’ properties.
`2.
`Even if the flooding of Plaintiffs’ properties were tem-
`porary, we would still hold that the government took Plain-
`tiffs’ properties. For cases involving “temporary flooding,”
`courts apply a “multi-factor test for determining i f tempo-
`rary government induced flooding is a taking rather than
`a mere trespass.” Ideker Farms , 71 F.4th at 978. These
`factors include “time,” “the degree to which the invasion is
`intended or is the foreseeable result of authorized govern-
`ment action,” “the character of the land at issue,” “the
`owner’s reasonable investment-backed expectations r e-
`garding the land’s use,” and the “[s]everity of the interfer-
`ence.” Ark. Game , 568 U.S. at 38–39 (inner quotation
`marks and citations omitted); see also Ridge Line, Inc.
`v. United States , 346 F.3d 1346, 1355–56 (Fed. Cir. 2003).
`On appeal, the government does not directly contend that
`the Court of Federal Claims erred in finding that the char-
`acter of the land, Liability Decision at 248 n.18, and
`Case: 23-1363 Document: 83 Page: 14 Filed: 12/22/2025
`
`
`
`
`
`
`
`ABLAN v. US 15
`severity of the interference, id. at 250–53, weigh in favor of
`the Plaintiffs. See generally Appellant’s Br. 20–35. On ap-
`peal, the government challenges the Court of Federa l
`Claims’ analysis of the time, Appellant’s Br. 22–27 , intent
`or foreseeability, Appellant’s Br. 27–38, and reasonable in-
`vestment-backed expectations factors. Appellant’s Br. 39–
`45. With respect to the time and duration of the t aking,
`the government argues that Hurricane Harvey was an “iso-
`lated trespass[ ]” and that the easement would be u sed
`“during only the most extreme natural disasters.” Appel-
`lant’s Br. 24. However, the Court of Federal Claim s rea-
`sonably found that the government “reserves the rig ht to
`repeat the impoundment” and that “the likelihood of recur-
`rent flooding is high.” Liability Decision at 251 & n.20. As
`the Court of Federal Claims found, the government has ob-
`tained a “permanent right to inundate the property with
`impounded flood waters.” Liability Decision at 250. We
`see no clear error in the Court of Federal Claims’ determi-
`nation that this factor weighs in favor of Plaintiffs.
`The Court of Federal Claims similarly did not clear ly
`err in finding that the government foresaw the inva sion of
`Plaintiffs’ properties and intentionally took flowa ge ease-
`ments on them. Liability Decision at 254–60. The govern-
`ment argues that “urban development” of the land wa s
`unanticipated. Appellant’s Br. 33. However, the inquiry is
`whether “the invasion is intended or is the foreseeable re-
`sult of authorized government action,” Ark. Game , 568 U.S.
`at 39 (emphasis added), not whether the extent of the dam-
`age from the invasion was foreseeable. 4 See Sanguinetti
`
`4 Indeed, the government could have “taken appro-
`priate proceedings, to condemn as early as it chose , both
`land and flowage easements.” Dickinson , 331 U.S. at 747.
`By choosing not to do so and thus taking the calculated risk
`that severe storms would not occur, it “left the ta king to
`physical events.” Id. at 748.
`Case: 23-1363 Document: 83 Page: 15 Filed: 12/22/2025
`
`
`
`
`
`
`
`ABLAN v. US 16
`v. United States , 264 U.S. 146, 149–50 (1924) (focusing on
`whether “overflow was the direct or necessary result of the
`structure” or “within the contemplation of or reasonably to
`be anticipated by the government”). Thus, for the reasons
`discussed in Section III.A.ii.1, supra , intent or foreseeabil-
`ity weighs in favor of Plaintiffs.
`Lastly, we see no clear error in the Court of Feder al
`Claims’ finding that Plaintiffs’ reasonable investm ent-
`backed expectations weigh in favor of finding a taking. 5 Li-
`ability Decision at 263. A takings claim is “not barred by
`the mere fact that title was acquired after” the government
`has acted. Palazzolo v. Rhode Island , 533 U.S. 606, 630
`(2001). While the government argues that Plaintiff s
`should have known that their land was susceptible to flood-
`ing, Appellant’s Br. 39–45, the Court of Federal Claims jus-
`tifiably relied on: (1) the undisputed fact “that plaintiffs
`did not know their properties were located within t he res-
`ervoirs and subject to attendant government-induced flood-
`ing,” Liability Decision at 262; (2) that “average
`homeowner[s] do[ ] not generally know” how to “read and
`understand” government maps that indicated the Plai n-
`tiffs’ properties were within the dams’ reservoirs, id. ;
`
`5 We assume, without deciding, that the Supreme
`Court’s decision in Arkansas Game incorporated the “rea-
`sonable investment-backed expectations” test from the reg-
`ulatory takings context into the temporary flooding
`context. 568 U.S. at 39 (describing reasonable-investment-
`backed expectations as a factor, citing regulatory takings
`cases); cf. Loretto v. Teleprompter Manhattan CATV Corp. ,
`458 U.S. 419, 432 (1982) (explaining that “physical inva-
`sion cases are special” and that “a permanent physical oc-
`cupation is a government action of such a unique character
`that it is a taking without regard to other factors” like “the
`extent to which [a regulation] interferes with inve stment-
`backed expectations”).
`Case: 23-1363 Document: 83 Page: 16 Filed: 12/22/2025
`
`
`
`
`
`
`
`ABLAN v. US 17
`(3) that “it would take an uncommonly attentive eye to no-
`tice” the “miniscule details” in “subdivision plats, which in-
`dicate that land was subject to controlled inundati on,” id. ;
`(4) that “there is no evidence that [public] meetin gs [con-
`ducted by the Corps and local governments] were hea vily
`attended or particularly well publicized,” id. at 263; and
`(5) that a regular flow of people moving in and out of the
`community meant that many new residents would not
`know of the risk of flooding, id. The Court of Federal
`Claims’ weighing of this evidence and finding that reason-
`able investment-backed expectations weigh in favor of
`Plaintiffs were not clearly erroneous.
`Accordingly, even if the flooding of Plaintiffs’ properties
`were temporary, we would hold that the government t ook
`flowage easements on Plaintiffs’ properties because every
`factor of the Arkansas Game test favors Plaintiffs.
`iii.
`The government contends that any taking is excused
`by a necessity defense. See Appellant’s Br. 45–51. We dis-
`agree. This is not a case where the government prevented
`a landowner from activities “akin to public nuisances.” Lu-
`cas v. S.C. Coastal Council , 505 U.S. 1003, 1022 (1992).
`Nor is it one where the government’s actions were i n re-
`sponse to an unforeseeable exigency, such as where urgent
`action was taken “to prevent the spreading of a fir e.” See
`id. at 1029 n.16 (quoting Bowditch v. City of Boston ,
`101 U.S. 16, 18–19 (1879)). And the government did not
`build and operate the Addicks and Barker Dams for t he
`benefit of Plaintiffs. Cf. Nat’l Bd. of YMCA v. United
`States , 395 U.S. 85, 90–93 (1969) (holding that there was
`no compensation for takings liability when there wa s a
`temporary and unplann