Ministerio Roca Solida, Inc. v. United States ( 2021 )

In the United States Court of Federal Claims
)
MINISTERIO ROCA SOLIDA, INC., )
)
Plaintiff, )
) No. 16-826L
v. ) (Filed: October 25, 2021)
)
THE UNITED STATES OF AMERICA, )
)
Defendant. )
)
Matthew S. Owen, Kasdin M. Mitchell, Erin E. Cady, Gavin R. Tisdale, and Neil A. Joseph,
Kirkland & Ellis LLP, Washington, DC, for Plaintiff.
Davené D. Walker, Brent Allen, Trial Attorneys, and David A. Harrington, Assistant Chief,
Natural Resources Section, Environmental and Natural Resources Division, U.S. Department of
Justice, Washington, DC, for Defendant, with whom was Jean E. Williams, Acting Assistant
Attorney General.
OPINION AND ORDER
Kaplan, Chief Judge.
The Plaintiff in this Fifth Amendment takings case, Ministerio Roca Solida (“the
Ministry”), has since late 2006 owned a forty-acre parcel of land in Nevada that lies within the
boundaries of the Ash Meadows National Refuge (“Ash Meadows” or “the Refuge”). In 2008 the
Ministry opened a church camp and retreat on the northeastern corner of the property. It named
the camp the “Patch of Heaven.”
Ash Meadows is located within the historic floodplain of the Carson Slough. It is home to
many native plants and animals and contains one of the greatest concentrations of endemic
species anywhere in the United States. Since at least the mid-1990s, it had been a goal of the
United States Fish and Wildlife Service (“FWS”) to restore the habitat of two endemic species of
fish—the pupfish and the speckled dace. Restoration efforts were needed because private
property owners who lived on the land before the Refuge was established in 1984 had diverted
spring waters from their natural channels into irrigation ditches that they used for agricultural
purposes. Because irrigation ditches do not supply a good habitat for fish, FWS planned a series
of projects to fill in irrigation ditches and return spring waters back to their historic paths. One
such project was the Fairbanks and Soda Springs restoration project, which was begun in 2009
and substantially completed in 2010.
It is undisputed that as a result of the project, the Patch of Heaven lost one of its most
attractive features—the supply of spring water that had flowed through the property in a man-
made ditch and which the Ministry had used for recreational purposes and to perform baptisms.
The spring water was rerouted out of the man-made ditch that led to the camp and into to a
“restoration” channel located on Refuge property that was upstream and to the east of the camp.
To make matters worse, in December 2010, just a few months after the bulk of the work
on the restoration channel was completed, the area experienced five or six days of very heavy
rainfall. Stormwater coming down from the upper watershed of the Carson Slough flooded the
Patch of Heaven, damaging camp buildings, impeding access to the property, and sweeping away
grass, trees, and other vegetation. From the Ministry’s perspective, the loss of the spring water
combined with the destructive flooding in December 2010 transformed its oasis, or “Patch of
Heaven,” into just another dry desert landscape, covered in silt and devoid of greenery.
In its original complaint, the Ministry asserted that the construction of the restoration
channel had resulted in a Fifth Amendment taking of vested water rights. In a November 20,
2019 decision, the Court entered summary judgment in favor of the government as to that claim
because it found that the Ministry did not prove that it had vested rights to the beneficial use of
the water that flowed through the irrigation ditch and which FWS had rerouted away from its
property. See Opinion and Order (“Op. and Order”), ECF No. 56.
The remaining claim before the Court is one for the taking of the Ministry’s property by
recurrent flooding. The Ministry alleges in its complaint that the construction of the restoration
channel caused the destructive flooding that occurred in 2010, as well as subsequent floods that
took place in 2015 and 2016. Specifically, it alleges that the berm FWS installed upstream of the
Ministry’s property to divert spring water into the restoration channel blocked flood waters from
taking a natural path, one that would have discharged them on the western side of the Ministry’s
property, away from the church camp. Instead, according to the Ministry, the floodwaters were
rerouted to the east at an elevation above the church camp, causing them to flow into the
northeast section of the property where the camp is located. The Ministry further argues that,
under the multi-factor analysis set forth in Arkansas Game & Fish Commission v. United States
and its progeny, the recurrent flooding allegedly caused by the project constitutes a total physical
taking of its property, or at least the taking of a flowage easement, for which it is entitled to just
compensation. See 568 U.S. 23, 38–39 (2012).
The Court held a four-day trial on the Ministry’s flood-related takings claim in Las
Vegas, Nevada, the week of May 11, 2021. At the trial, the Ministry presented the testimony of,
among others, Pastor Victor Fuentes, the Ministry’s founder, as well as Ronald Matheny, the
previous owner of the property. Both Pastor Fuentes and Mr. Matheny testified that, until FWS
installed the restoration channel, they had never observed any significant flooding on the section
of the property where the Patch of Heaven is located.
The Ministry and the government also presented the testimony of expert witnesses. Each
retained a hydrologist to opine on the cause of the floods that occurred at the church camp in
2010, 2015, and 2016. In addition, the government presented the testimony of a meteorologist
2
who offered his opinion about the weather conditions prevailing in the area at the time of the
flooding events.
The Court has carefully considered all of the evidence as well as the parties’ arguments.
For the reasons set forth below, the Court finds that the Ministry failed to shoulder its burden of
proving that the restoration project caused significant flooding of the church camp that would not
have occurred but for the installation of the restoration channel. The Court therefore enters
judgment in favor of the government with regard to the Ministry’s takings claim. 1
FINDINGS OF FACT 2
The Ministry’s Purchase of the Property
Pastor Victor Fuentes and his wife, Mrs. Annette Fuentes, are the founders of Ministerio
Roca Solida, a non-profit, non-denominational Christian church incorporated under the laws of
the State of Nevada. Trial Tr. (“Tr.”) vol. 1, 15:1–5, 54:24–55:3, ECF No. 124; see also Op. and
Order at 2. In 2006, after hearing two members of his Bible study group complain of their
inability to find a suitable program in the Las Vegas area to help their son who was struggling
with alcoholism, Pastor Fuentes decided to search for property nearby that the Ministry could use
for a church camp and retreat. Tr. vol. 1, 55:17–56:11. He wanted to find a place “close to
nature” where campgoers could “relax,” “calm down,” and “be ministered.” Id. 56:7–11.
To those ends, another member of the Pastor’s Bible study group alerted him to a
forty-acre parcel of land owned by Ronald Matheny that was within the boundaries of the Ash
Meadows National Refuge. Id. 57:3–10; Plaintiff’s Ex. (“PX”) 269. The property was then, and
remains, one of the few privately owned parcels located entirely within the Refuge’s boundaries.
Joint Stip. of Facts (“JS”) no. 5, ECF No. 106; PX 451 (map of Ash Meadows National Refuge).
Mr. Matheny had purchased the land in January 1997 for the price of $60,000. PX 269
(quitclaim deed dated January 28, 1997); tr. vol. 1, 168:18–169:6, 177:6–8. At the time he
bought it, the property was “just bare land” and sagebrush. Tr. vol. 1, 170:16–19. Mr. Matheny
planted grass and trees and installed fencing, buildings, and other improvements, as well as water
and sewer systems. Id. 170:20–171:14. He placed structures and fixtures on the property to
1
Because the Court concludes that the Ministry has not met its burden of proving causation, it
does not address the other factors the Supreme Court has identified as relevant to determine
whether recurrent flooding caused by government action rises to the level of a taking. See Ark.
Game & Fish Comm’n, 568 U.S. at 38–39 (explaining that the court should consider: (1) the
duration or frequency of the flooding; (2) whether the flooding is intended or is the foreseeable
result of the government action; (3) character of the land; (4) reasonable investment-backed
expectations; and (5) severity of the interference with property interests). In addition, the Court’s
factual findings will be limited to those that are relevant to the issue of causation.
2
This section sets forth the Court’s principal findings of fact pursuant to Rule 52(a) of the Rules
of the Court of Federal Claims (“RCFC”). Other findings of fact and rulings on questions of
mixed fact and law are set out in the Discussion section.
3
replicate an Old West town and he also built a stage for musical entertainment, installed a
campfire ring, and sawed down tree stumps that guests could use for seats. Id. 171:7–172:1.
Pastor Fuentes toured the property in 2006 along with several members of the church. Id.55:10–14, 57:19–22. He found the spring water that ran through two irrigation ditches on the
property, as well as its greenery, very appealing. Id. 58:2–16; see also PX 532 (aerial photograph
of the property depicting the ditches). He anticipated that he could use the spring water to
perform baptisms. Tr. vol. 1, 58:11–16. He also was pleased that the property was surrounded by
a federal wildlife refuge. Id. 88:4–9. Because there would be no neighbors, camp visitors could
stay up late into the night to “do whatever they want to do,” work through “whatever problem
they want to lose,” and “get in touch with nature” away from city environments like Las Vegas.
Id. 88:9–19.
In November 2006 the Ministry purchased the property from Mr. Matheny for $500,000.
Joint Ex. (“JX”) 5. A member of the Fuentes’ Bible study group negotiated the price and donated
the funds for the purchase. Tr. vol. 1, 65:17–66:14, 127:19–23.
The Construction and Launch of the Church Camp
Between 2007 and 2008, the Ministry and its members transformed the northeastern part
of the property into a church camp. Tr. vol. 1, 68:1–6, 69:14–22. They cleaned the irrigation
ditches, removed six or seven semi-truck loads of trash, installed electricity in all of the
buildings, installed plumbing, painted, added insulation, converted the residential well into a
commercial well, and prepared all of the buildings on the property for health and fire inspections.
Id. 68:3–5, 69:3–5, 68:7–23. Much of the cleaning and refurbishing was done by members of the
church who donated their labor. Id. 69:5–9. In addition, the church hired professional contractors
for the more technical work, including the installation of the septic system and the grading of the
land, and the excavation of the pond. Id. 69:9–13; 211:7–11 (testimony of Ronnie Murphy,
general manager for Ron Murphy Construction). The church spent over $300,000 improving and
readying the property, excluding the market value of the volunteer labor of members of the
congregation. Id. 80:16–81:21; see PXs 46, 382–410, 415–21, 425–31 (checks, receipts, and
invoices for improvements).
By the time the camp was opened in 2008, JS no. 9, it included a chapel, a commercial-
grade kitchen, a dining hall, multiple bunkhouses, restrooms, a shower facility, and a snack bar,
PXs 531, 532 (aerial photographs); tr. vol. 1, 65:6–14, 196:7–11. The camp could accommodate
up to sixty-five guests at one time, tr. vol. 1, 83:24–84:1, and it regularly hosted groups from
other churches across the southwest region, id. 82:10–19. In addition, other events were held on
the property, including weddings, fundraisers, and retreats for the Ministry’s own membership.
Id. 82:20–24, 136:14–137:11. The Ministry requested a donation of $45 per person for use of the
camp to help pay the expenses of its operation. Id. 83:15–23.
The Location of the Property and Attendant Flood Risks
The Ministry’s land is located in the SW ¼ of the SW ¼ of Section 21 of Township 17
South, Range 50 East, MDB&M in Nye County, Nevada. JX 5. The property, as noted, lies
4
entirely within the boundaries of the Refuge. JS no. 5; PX 451 (map of Ash Meadows National
Wildlife Refuge). As depicted in the surface drainage map below, which is Joint Exhibit 3, both
the Refuge (outlined in green in the lower left-hand corner of the image) and the Ministry’s
property (indicated by a red star) are located at the bottleneck of the historic floodplain of the
Carson Slough (outlined in dark blue). JS no. 4; tr. vol. 3, 600:12–15, 724:5–10, ECF No. 126. 3
The Carson Slough has a long history of flooding. Tr. vol. 3, 610:10–11, 640:3–9
(testimony of Kevin DesRoberts, the Project Leader of the Desert National Wildlife Refuge
Complex since July of 2009); tr. vol. 2, 285:12–16 (testimony of Richard Johnson, former Nye
3
The outer boundaries of the Slough are high points of the area (e.g., mountain ridges). Tr. vol.
3, 726:1–7. The lighter blue lines are “drainages,” which usually are dry, but when flooding
occurs, water feeds through them. Id. 727:16–20, 797:2–6.
5
County Floodplain Administrator), ECF No. 125. 4 When rain falls in the Slough, it travels
downward from northeast to southwest, “collecting and gaining water” along the way. Tr. vol. 3,
727:22–728:9 (testimony of Corey Lee, former Refuge manager). The floodwater ultimately
flows through the bottleneck of the Carson Slough that cuts through the upper third of the
Refuge, where the Patch of Heaven is located. Id. 696:12–16 (testimony of Robert Andress,
former Otis Bay project manager, stating that flood flow runoff in the watershed funnels into the
Carson Slough, that the Slough gets very narrow in the area of the Peterson Reservoir and the
Ministry’s property, and that all of the runoff must go through the narrow zone); see also id.728:10–19 (Lee testimony, stating that flood flow runoff is funneled “into almost a pinch point”
in the upper third of the Refuge); tr. vol. 2, 447:23–25 (testimony of Dr. Blaine Reely, Plaintiff’s
expert hydrologist, stating that the majority of watershed is upstream of Plaintiff’s property).
A significant portion of Ash Meadows, and about two-thirds of the Ministry’s property
(including the camp location in the northeast corner), have been designated as flood zones by the
Federal Emergency Management Agency (“FEMA”). JX 24 (FEMA Flood Insurance Rate Map);
Defendant’s Ex. (“DX”) 47 (FWS document superimposing the boundaries of the Patch of
Heaven onto the FEMA-designated flood zone); tr. vol. 3, 803:5–10 (testimony of Dr. David
Thompson, government’s expert hydrologist); tr. vol. 1, 180:19–23 (Matheny testimony); tr. vol.
2, 272:6–9 (Johnson testimony); tr. vol. 2, 421:2–12 (Reely testimony).
At trial, Richard Johnson, a former Nye County Floodplain Administrator, testified that
he visited the church camp around late 2009 or early 2010. Tr. vol. 2, 268:24–269:9. During that
visit, he told Pastor and Mrs. Fuentes that the property was in a FEMA-designated AO2 flood
zone. Id. 269:8–21, 272:6–9. 5 An AO2 designation means that the property is in a “special flood
hazard area”—i.e., a high-risk area for flooding. Id. 283:4–6, 17–19. 6 Mr. Johnson told the
Fuenteses that the County’s floodplain ordinance required that buildings in an AO2 flood zone
be elevated by at least two feet or flood-proofed up to two feet and anchored. Id. 270:25–271:6.
The Ministry did not take any action to bring itself into compliance with this requirement
because, as Pastor Fuentes testified, he understood Mr. Johnson to have told him to hold off until
the restoration project was completed. Tr. vol. 1, 130:18–131:23; see also tr. vol. 2, 271:5–272:9
4
“A floodplain is an area around a river or a stream or a wash that is subjected to flow whenever
a flood passes through [a] particular breach of a spring.” Tr. vol. 3, 796:18–21. It is “generally a
relatively wide area,” and once “flow gets out of the channel itself,” it moves “in a similar
fashion to sheet flow.” Id. 796:21–24. Sheet flow is flooding over land that spreads out and
slows down as it moves downhill over a patch of land. Id. 729:16–730:7.
5
An AO2 designation means that during a “100-year flood” event, the property could be
inundated by up to two feet of water. Tr. vol. 2, 269:18–21, 271:14–18.
6
The former owner of the Ministry’s property, Ronald Matheny, was aware that the property
was located in a FEMA-designated flood zone when he sold it to the Ministry. Tr. vol. 1,
180:19–181:2. He testified that he did not disclose that information to the Ministry at the time of
sale because he believed (incorrectly) that he had “built the town where the flood zone area
isn’t.” Id. 181:3–9.
6
(Johnson testimony, stating that, until FEMA did a base flood elevation study of Ash Meadows,
he could not tell the Fuenteses by how much the buildings on the property should be elevated).
The record contains a significant amount of historical evidence that reflects flooding on
the Ministry’s property. Satellite imagery of the property in 1948 shows spring flows to the east
of the property, and a flood channel travelling through the property from the northeast corner to
the southwest. DX 4; tr. vol. 3, 599:8–21, 601:10–602:4 (DesRoberts testimony). The same
natural flood channel running from the northeast corner of the property to the southwest is also
visible on satellite images from 1980, see JX 27; tr. vol. 3, 602:5–20, 603:3–10 (DesRoberts
testimony, describing Joint Exhibit 27), 1985, and 1989, see JX 14; tr. vol. 3, 604:18–605:5,
606:7–18 (DesRoberts testimony, describing Joint Exhibit 14); see also tr. vol. 3, 697:2–12
(Andress testimony, stating that elevation profiles, patterns of the landscape, and aerial
photographs provide evidence of substantial flooding events in the past and that “signs of flow
and scour east to west across that part of the upper Carson Slough” are “very visible on the
ground and in the imagery”).
Despite the foregoing, the previous owner, Mr. Matheny, testified at trial that, during his
period of ownership (from early 1997 to late 2006), the northeastern portion of the property had
never flooded. Tr. vol. 1, 173:5–174:4, 173:22–175:2. He acknowledged that during heavy
storms he had observed flooding on the Refuge outside of his property. Id. 174:5–24. Those
floods were “in the vicinity of the turnoff going into Peterson Reservoir,” approximately half a
mile from his property. Id. 174:5–15. 7 But when storm water came onto his property from the
northeast, Mr. Matheny testified, it either stayed in the irrigation ditches or else would discharge
to the west of the buildings out channels that had been formed naturally by erosion from
flooding. Id. 179:17–180:18; 182:1–11. 8
Mr. Matheny acknowledged that during periods of heavy rainfall, the water would
“puddle up” on his property and that the northeast field would become a “sloppy mess.” Id.173:10–16. However, according to Mr. Matheny, the storm water that ran through the irrigation
ditches on the property never overtopped the edge of those ditches nor did it flood the structures
he built. Id. 173:17–174:4.
7
On one occasion, Mr. Matheny testified, the water in the flooded area of the Refuge was deep
enough to come up to the headlights of his “Chevrolet 1 ton” “[w]ork truck.” Tr. vol. 1, 174:16–
21.
8
The Court understands Mr. Matheny to be referring to a complex of flood channels that had
been naturally eroded out from repeated flooding (that is, the naturally-created discharge
channels west of the property). Tr. vol. 1, 182:7–16; tr. vol. 2, 440:1–11, 444:19–445:3 (Reely
testimony); tr. vol. 3, 829:20–830:2, 830:17–19 (Thompson testimony).
7
The Fairbanks and Soda Springs Restoration Project
Background
The Ministry alleges in this case that the floods that occurred on its property starting in
December 2010 were caused by FWS’s implementation of its project to restore the outflows of
the Fairbanks and Soda Springs (“the restoration project” or “the project”). Those springs lie at
the north end of the Refuge and are the first springs to feed into the Carson Slough. JX 20
(Environmental Assessment for Fairbanks Spring and Soda Spring Restoration) at 5, 9; tr. vol. 3,
609:5–12 (DesRoberts testimony).
As noted briefly above, during the twentieth century, and before the Refuge was created,
the owners of what was then private property had drained the wetlands to facilitate farming and
peat mining. Tr. vol. 3, 609:12–15, 655:6–22. They removed native vegetation, leveled the land,
and put in infrastructure for irrigation by digging ditches into which natural spring water was
diverted. Id. 655:18–22; 628:18–629:1. One of these ditches, running from north to south and
into the Patch of Heaven, appeared sometime between 1985 and 1989. Tr. vol. 3, 605:16–23,
607:7–19, 631:15–632:5 (DesRoberts testimony, discussing Joint Exhibit 36 and observing that
spring flows from Fairbanks, Soda, Rogers, and Longstreet Springs were all diverted and
combined into a single ditch that headed to the west and then flowed down through the
Ministry’s property).
These actions, along with other human interventions, had caused “the entire wetland
ecosystem [to be] altered and . . . [to] become infested with noxious weeds and aquatic invasive
species,” which “decrease[d] the viability for endemic species recovery and provide[d] habitat
inconsistent with the needs of the species the Refuge was created to protect.” JX 20 at 5; see also
tr. vol. 3, 655:23–656:4 (DesRoberts testimony, stating that agricultural use had interfered with
the periodic flooding of the Slough and the benefits of such flooding to native fish species).
Irrigation ditches do not provide a good habitat for endemic and endangered species,
especially fish and other aquatic species. Tr. vol. 3, 594:20–22. FWS therefore planned to restore
the “[c]onnectivity of the springs’ outflows with the extensive wetland in the Carson Slough” by
rerouting spring flow out of the irrigation ditches, removing existing physical barriers, and
installing culverts that could be passed by native fish. JX 20 at 5.
Preparations for the Project
FWS publicized its intent to restore the Refuge’s springs to their historic paths as early as
1995 in one of the Refuge’s informational brochures. JX 45; tr. vol. 3, 590:24–591:14, 592:1–5.
The brochure stated that FWS was then working to restore the habitat of Ash Meadows and that
it expected it would continue its restoration efforts for many years. JX 45 at 2. It explained that
the long-term plan for the restoration process included returning “[s]tream channels diverted into
concrete irrigation ditches . . . to their natural courses” and removing “[n]onnative plants and
animals . . . to allow native plants and animals to thrive without competition.” Id.8
In 2004, FWS retained environmental and ecological consulting firm Otis Bay Ecological
Consultants (“Otis Bay”), tr. vol. 3, 669:22–23, to conduct the Ash Meadows Geomorphic and
Biological Assessment, id. 671:7–13. Otis Bay reviewed the then-current status of the habitats
and species of the Refuge, evaluated “the restoration potential of the springs, spring channels,
and Carson Slough,” and “propose[d] restoration recommendations.” JX 4 (Ash Meadows
Geomorphic and Biological Assessment) at 7. It completed its assessment in 2006. Tr. vol. 3,
671:20–22, 672:8–673:7 (Andress testimony, discussing the objectives of the assessment
generally).
In August 2009, FWS issued a Final Comprehensive Conservation Plan (“the CCP” or
“the plan”) and Environmental Impact Statement for all of the refuges in the Desert National
Wildlife Refuge Complex, including Ash Meadows. JX 7 (FWS Final Comprehensive
Conservation Plan and Environmental Impact Statement); tr. vol. 3, 612:8–18 (DesRoberts
testimony). 9 A month later, in September 2009, FWS published its Environmental Assessment
(“the EA”) for the Fairbanks and Soda Springs restoration project for public comment. JX 20
(the EA). The EA, which was prepared by a private contractor, was posted on the Refuge
website, within the Refuge itself, and at public locations in the community. Tr. vol. 3, 617:17–
618:3 (DesRoberts testimony).
As described in the EA, the plan for restoring the Fairbanks and Soda Springs involved
excavating new stream channels in the vicinity of the historic channels and removing and filling
in obstructions to natural flow within those channels such as dams and old irrigation channels.
JX 20 at 5; see also tr. vol. 3, 675:9–18 (Andress testimony, stating that the purpose of the
project was “to take the[] outflow [of the Fairbanks and Soda Springs] out of [the] old irrigation
ditches and . . . fields and focus them into individual stream channels in a more naturalized
alignment and condition for the purpose of species recovery” and “ecosystem restoration”). The
EA contained a map depicting an overview of the restoration project. JX 20 at 9. It shows the
rerouting of the spring waters that then traversed the Ministry’s property through the irrigation
ditch so that they instead flowed through a new restoration channel to the east of the boundary of
the property. Id.; tr. vol. 3, 618:24–619:17, 620:12–15 (DesRoberts testimony).
FWS retained Otis Bay to design and build the restoration project. Tr. vol. 3, 670:17–
671:13, 706:21–707:12. Construction began in December 2009. JS no. 10. Otis Bay completed
the restoration project in two phases. During Phase I, which took place between December 2009
and April 2010, Otis Bay built the restoration channel north of the berm it later installed to divert
the spring water to the east and then south around the Ministry’s property. Tr. vol. 3, 646:21–25,
647:18–20. During Phase II, which began in July 2010 and ended January 2011, Otis Bay
installed the berm, which it constructed out of “dredged spoils.” Gourley Dep. 214:1–6, ECF No.
119-1; tr. vol. 3, 647:2–5, 647:21–23. 10
9
FWS was required by the Refuge Improvement Act of 1997 to create the CCP. JX 7 at 15; see
also tr. vol. 3, 612:8–11. Planning for it formally began in the fall of 2001. JX 9 at 2.
10
Throughout these proceedings the parties have engaged in a somewhat semantic debate about
whether to call this structure a “dam” as the Ministry would prefer, or a “berm” as the
government urges. While the structure may technically constitute a “dam” in that it does block
9
Otis Bay designed and constructed the restoration channel only to carry spring flow. Tr.
vol. 3, 713:19–22. Its dimensions were about two to three feet wide and two to three feet deep.
Id. 697:15–19. It was built to accommodate a flow of approximately 1,800 gallons per minute, or
two to three cubic feet per second (“cfs”). Id. 697:20–24. The restoration channel was not
designed or built to carry storm waters during flood events. Id. 713:23–714:7 (Andress
testimony); see also id. 654:10–12 (DesRoberts testimony). According to Robert Andress, the
Otis Bay project manager who worked on Phase I of the project, id. 676:11–13, 714:19–22, Otis
Bay designed the channel with the expectation that any flood flow would travel to the same
locations it always had traveled, and it was anticipated that the channel would be overwhelmed
in any case if there were floods, id. 714:1–7.
As noted, Phase I of the project involved the construction of partially new channels in the
upper section of the spring. Id. 706:21–24. As part of that work, Otis Bay excavated a stream
channel and added culverts and a fish barrier. Id. 706:25–707:3. Mr. Andress testified that during
the excavation process he used GPS to determine where to drive the stakes into the ground to cut
the channels. Id. 708:7–13. He explained, however, that he might adjust the locations of the
stakes by up to thirty feet if he concluded that it was necessary “to make it function better.” Id.708:14–25.
Otis Bay did not use the services of a professional engineer in performing its work. Id.707:16–19, 709:4–6. Nor did it use stamped design plans (meaning plans that had been reviewed
and approved by a licensed professional engineer) to complete the construction. Id. 707:16–22,
709:7–8, 866:16–19.
Otis Bay officially completed the project in January 2011. Id. 627:12–14.
The Floods
2007 Flood
In the deposition he gave on behalf of Ministerio Roca Solida pursuant to Rule 30(b)(6)
of the Rules of the Court of Federal Claims (“RCFC”), portions of which the Court admitted into
evidence, see tr. vol. 1, 10:8–12:6, Pastor Fuentes testified that “the first time the property
flooded” after the Ministry purchased it was in 2007. Ministerio Roca Solida Dep. (“Ministerio
Dep.”) 96:12–15, ECF No. 122-1. On that occasion it had rained north of the camp the day of the
flooding and the day before. Tr. vol. 1, 143:25–144:10. Pastor Fuentes, on behalf of the Ministry,
testified that, as rainfall flowed down the watershed, id. 144:11–13, muddy water slightly
overtopped the culvert and the banks of the irrigation ditches, id. 78:18–79:23, 99:11–17, 141:1–
5. Floodwater dumped mud and silt into a pond on the property that was fed by one of the
the flow of spring water to at least some degree, in the Court’s view it is more precise to call it a
berm, which Merriam Webster defines as including “a mound or wall of earth or sand.”
Merriam-Webster’s Collegiate Dictionary 115 (11th ed. 2020).
10
irrigation ditches. Id. 78:19–24. Pastor Fuentes had to close the pond because it had filled with
silt. Id. 78:24–79:2. He also had to hire a contractor to excavate the pond. Id. 78:5–21. 11
December 2010 Flood
In late December 2010, the Patch of Heaven suffered significant flood damage after there
had been multiple days of heavy rainfall in the upper watershed, with the heaviest rainfall
occurring on December 22. Tr. vol. 4, 942:12–20, 974:18–20 (testimony of Jay Rosenthal, the
government’s expert meteorologist, explaining that there had been heavy rainfall from December
17 through December 22), ECF No. 127. Pastor Fuentes testified that he arrived at the property
on December 23 after the peak of the flood flow had receded. Tr. vol. 1, 99:18–23, 147:6–8.
Upon arrival, he could not enter the property because the culvert that enabled the restoration
channel to pass under the access road to the Patch of Heaven had been blown out by flood water.
Id. 100:1–7; PX 481 (photographs of washed-out culvert). Pastor Fuentes was eventually able to
get onto the property with Mr. Matheny’s help. Tr. vol. 1, 100:7–9. Mr. Matheny laid boards
across the restoration channel so that both Pastor and Mrs. Fuentes could cross it and enter the
camp. Id. 100:7–9, 102:25–103:3 (Fuentes testimony); id. 187:25–188:7 (Matheny testimony);
PX 484 (photographs of boards laid across channel).
When they arrived on the property, Pastor Fuentes observed floodwater all around and
coming from the direction of the restoration channel. Tr. vol. 1, 102:8–12. It “was rushing down
the northeast field” to where the buildings were located, with “lots of water behind the lumber
house.” Id. The northeast field itself was inundated with water and the garden that once was there
was swept away. Id. 103:17–104:1; PX 486 (photograph of northeast field). Floodwater also
entered the barbecue area just outside of the snack bar and was several inches deep. Id. 147:9–
148:1; see also PXs 506, 508. Mr. Matheny testified that, when he owned the property, he had
never seen anything “even close” to the flooding he observed in December 2010. Tr. vol. 1,
189:21–190:4.
Ronnie Murphy, the general manager of Ron Murphy Construction, also provided
testimony about the damage caused by the 2010 flood. Id. 207:5–9. He flew over the property in
an airplane. Id. 220:23–221:2; see also PX 151 (aerial photograph). He testified that “when the
rain came and it was really heavy and the water started flooding the whole property, we knew
that something catastrophic happened upstream for that amount of water to be on the property.”
Tr. vol. 1, 221:3–15. Mr. Murphy was of the opinion that the flooding was caused when a “dam”
located to the north of the Ministry’s property “broke,” id. 221:21, and that once it did “water
11
Pastor Fuentes testified that he believed that the flooding that resulted in the damage to his
pond was caused by work that FWS was performing upstream, which he believed had caused
“something” to “break loose from the top” and “rush the water down to the property.” Tr. vol. 1,
144:11–19; 145:3–146:2. Mr. DesRoberts testified, however, that there was no work being done
by FWS at the time that the flood occurred in 2007. Tr. vol. 3, 639:18–640:2. The Court credits
Mr. DesRoberts’ testimony and finds that the flooding that occurred in 2007 was not the result of
actions taken by FWS.
11
went everywhere” and it “sheeted across pretty much the whole property, particularly in the area
where their bunkhouses and stuff were,” id. 222:4–12. 12
October 2015 Flood
The property flooded again on October 18, 2015, after a series of heavy thunderstorms
moved through the area, tr. vol. 1, 105:23–106:4, which on October 18 dumped “tremendous
amounts of rain” “throughout the heart of the watershed” in a one-hour period, tr. vol. 4, 959:20–
960:12, 963:9–13, 964:7–17 (Rosenthal testimony). Pastor Fuentes again arrived at the property
after the peak flooding had passed. Tr. vol. 1, 106:5–10, 152:19–21. He testified that the damage
looked “a lot like the 2010 flood.” Id. 106:11–14. He explained that, as with the 2010 event, he
again observed flood water entering the property from the direction of the restoration channel. Id.
106:13, 106:22–107:1. This time, however, water also came down from the north and flooded the
property northwest of the bunkhouses. Id. 106:14–21, 110:6–111:1. A natural erosion channel
that runs to the middle and then off to the west of Plaintiff’s property also was filled with flood
water during this event. Id. 153:18–154:4.
Flood water did not enter any of the buildings in 2015. Id. 154:9–11. Other than some
standing water behind the snack bar, most of the water receded off the property within two days
of the flood event. Id. 154:9–18, 157:16–23.
2016 Floods
Pastor Fuentes testified regarding two flood events in 2016. Tr. vol. 1, 112:3–4. One
occurred in January, when water entered the northeast hill and ran down through the former
irrigation ditch and into his front field. Id. 112:5–22. He stated that the flooding “wasn’t that
bad” on this occasion. Id. 159:18–24. Water did not enter any buildings. Id. 160:6–8.
There was another instance of flooding on July 3, 2016, which Pastor Fuentes stated was
“a little bigger” than the January flood. Id. 113:3–5. In the three preceding days, very strong
thunderstorms had struck the area. Tr. vol. 4, 970:2–5 (Rosenthal testimony). On this occasion,
water overtopped the culvert of the former irrigation ditch and ran through the front of the snack
bar area. Tr. vol. 1, 113:2–15 (Fuentes testimony); PXs 298, 300, 301. Again, no water entered
the buildings. Tr. vol. 1, 160:22–24.
March 2019 Flood
Pastor Fuentes testified that another flooding event occurred on March 9, 2019, a day that
he was present on the property. Tr. vol. 1, 114:21–24; Ministerio Dep. 25:2–7. Pastor Fuentes
stated that floodwater came from the northeast and flooded the northeast hill of the property. Tr.
vol. 1, 115:2–4; Ministerio Dep. 25:8–13, 72:7–10. The flooding was limited to the four or five
acres that comprise the northeast fields. Ministerio Dep. 28:4–14. Pastor Fuentes could not
estimate the depth of the water on this occasion; he stated only that it was spread widely over the
12
There is no evidence in the record to show that a dam located north of the property broke or
that the flooding that occurred was caused by such a break.
12
fields, id. 29:24–30:8, and that it then came down to the natural flood channel and flowed out in
a southwesterly direction, id. 30:9–12. The water did not damage or enter any of the camp
buildings. Id. 27:3–12. No work or repairs were required. Id. 27:13–18.
Mr. Corey Lee, the Ash Meadows Refuge Manager from January 2017 through
November 2020, tr. vol. 3, 717:1–13, also offered testimony about the March 2019 flooding
event. He observed that the night before the flooding occurred, it had started to rain and it was
still raining when he arrived at the Refuge the next morning on March 6. Id. 736:5–18. He
estimated that the Refuge received a half an inch of rain in twelve hours, which he characterized
as “not a lot of rain” but enough to cause a lot of surface flooding. Id. 736:10–13. Mr. Lee
testified that on that day he saw the flooding on Plaintiff’s northeast field and determined it was
approximately a half to a full inch in most places and moving southwest. Id. 757:4–14.
Mr. Lee visited different points along the Refuge and took photographs of his
observations on March 6 and 7, 2019. DXs 193, 197, 198. From an area south of the Patch of
Heaven, he observed that floodwaters generally moved in a southwesterly direction. Tr. vol. 3,
739:3–740:4. He observed the same trajectory of floodwater movement while standing north of
the Patch of Heaven, in an area between the Fairbanks and Roger Springs. Id. 747:22–748:5,
748:16–19; see also DX 199 (video of floodwaters); DX 209 (photograph from area between the
Fairbanks and Roger Springs); PX 451 (map of Refuge).
Mr. Lee also visited the restoration channel itself, at a location about half a mile to the
north of Plaintiff’s property. Tr. vol. 3, 749:25–750:11; DX 202 (photograph taken from
restoration channel facing north); DX 200 (photograph of restoration channel). He testified that
here, again, the water flowed from the northeast towards the southwest. Tr. vol. 3, 751:11–13. He
stated that he observed that water coming from northeast of the restoration channel would flow
into the restoration channel and then flow across the restoration channel and out the west bank.
Id. 752:4–9.
April 2020 Flood
Pastor Fuentes testified that additional flooding occurred on April 9, 2020. Tr. vol. 1,
116:1–12; Ministerio Dep. 72:16–19. On that day, he witnessed floodwater on the northeast field
similar to what he observed in March 2019. Tr. vol. 1, 116:15–18; PXs 703, 705. 13 On this
occasion again, there was no damage to the buildings. Ministerio Dep. 79:14–22.
Cumulative Impact of Floods
The 2010 and 2015 floods were the most severe of those about which the Ministry
complains. The 2010 flood damaged the church camp buildings, causing the walls and ceiling to
crack in both bunkhouses. Tr. vol. 1, 150:12–14, 150:25–151:8; PX 529 (photograph of water
13
Pastor Fuentes testified that from his perspective, for each event, he could see that the flood
water came at the property from the direction of the restoration channel to the northeast. Tr. vol.
1, 100:11–15 (December 2010 flood); id. 106:22–107:1 (October 2015 flood); id. 112:20–24
(January 2016 flood); id. 113:12–15 (July 2016 flood); id. 116:19–22 (April 2020 flood).
13
near buildings); PXs 547, 548, 550, 551, 554 (photographs of cracked bunkhouse walls). In
addition, those floods (in combination with the subsequent milder ones in 2016, 2019, and 2020)
caused significant damage to the landscape. The 2010 flood “washed away” the “vegetation” on
the property, and it has not grown back. Tr. vol. 1, 104:4–9. Pastor Fuentes further testified that
almost all of the floods left white silt in their wake that lingered on the property long after the
floodwaters had receded. Id. 104:4–17 (stating that, after the December 2010 flood, “all the
vegetation there died,” and the area “was cover[ed] with the silt”); id. 224:15–18 (Murphy
testimony, noting that the Ministry’s “[p]roperty was completely covered in silt” after the
December 2010 flood); id. 109:9–13 (Fuentes testimony, stating that the October 2015 flood left
“white silt all over the field”); id. 117:4–11 (explaining that Plaintiff’s Exhibit 703 showed “all
the white silt due to the flood” after the April 2020 event); PX 596 (photograph of silt following
March 2019 flood); tr. vol. 2, 349:4–20 (Reely testimony, describing white silt following flood
events generally).
The estimated cost of repairing the buildings and restoring the landscape after the 2010
flood was $86,639. Tr. vol. 1, 227:16–18, 223:14–19 (Murphy testimony); PX 242 (2010 repair
estimate from Ron Murphy Construction). The estimate included removing the white silt,
bringing in rock to replace the eroded soil, repairing and replacing the irrigation system, and
jacking up and releveling the two damaged bunkhouses. Tr. vol. 1, 224:8–18, 225:11–18,
226:19–227:1, 227:16–18 (Murphy testimony).
After the 2015 flood, Ron Murphy Construction estimated that it would cost $222,355 to
repair the damage from both floods. Tr. vol. 1, 234:18–21. That estimate included additional
costs for regrading and cleaning out the eroded channels, removing additional silt, replacing
topsoil, reseeding grass, and regrading and filling erosion near the buildings. Id. 230:17–234:21;
PXs 165–67, 592–95 (2015 repair estimates from Ron Murphy Construction).
Pastor Fuentes explained that the church did not have the resources to make these repairs
and, even if it did, it would hesitate to invest any money because of the risk of continued
flooding. Tr. vol. 1, 123:9–23. To date, the Ministry has only made minimal repairs to the church
camp property. Id. 119:22–120:18.
Pastor Fuentes testified that the flood damage and the risk of future floods has hampered
the Ministry’s ability to fully use the land and operate it as a church camp. See id. 118:6–15. Use
of the camp has declined, id. 119:10–20, although some groups continue to use it and pay to do
so, Ministerio Dep. 33:24–35:10. One pastor testified at trial that his congregation stopped using
the camp for its retreats in 2016 because the land that was once green and lush became like any
other desert environment, and also because the water no longer ran through the property. Tr. vol.
1, 201:5–202:10. Pastor Fuentes also testified that he believed potential visitors are afraid to visit
the camp because of the risk of flooding. Id. 118:10–11. He stated that during the flood of 2015,
he had to help a pastor and his congregants safely exit the flooded property. Id. 118:12–17. After
the more significant floods of 2010 and 2015, Pastor Fuentes testified he was not able to use the
property at all for three or four weeks after each flood event. Id. 118:19–119:6.
14
Testimony of Plaintiff’s Expert Hydrologist
Qualifications
Plaintiff’s expert in this case was Dr. Blaine T. Reely. Dr. Reely is a civil engineer and
hydrologist who has practiced in those fields for nearly forty years. Tr. vol. 2, 295:18–21,
298:13–16. He holds a Ph.D. in civil engineering, with an emphasis in hydrology. Id. 297:2–8.
He is a registered professional engineer in a number of states. Id. 300:14–25.
Since 2002, Dr. Reely has owned Monsoon Consultants, where he serves as its principal
engineer. Id. 298:17–20, 299:10–12, 299:19–20. The company performs engineering, hydraulic,
and hydrologic analyses (including hydraulic modeling) in connection with public and private
land-development and water-management projects, such as the construction of dams and
flood-control projects. Id. 298:20–299:9 (explaining that Monsoon Consultants’ civil engineers
and hydrologists work for public and private clients); id. 296:11–16, 301:16–302:11, 305:10–
306:5, 306:22–308:24 (describing experience in water resources analysis and engineering, flood
control project engineering, hydrologic and hydraulic analysis of dams). Dr. Reely has testified
as an expert numerous times. Id. 313:25–314:6. The Court qualified him as an expert in the fields
of hydrology and civil engineering. Id. 324:3–4.
Dr. Reely’s Opinion
At trial, Dr. Reely explained that the Ministry hired him to evaluate the conditions in the
Carson Slough near the church camp property as well as upstream and downstream to get an
understanding of the hydrology and hydraulics of the surface water system. Tr. vol. 2, 309:3–9.
In addition, he was asked to evaluate the effect of the restoration project and the statistical
relevance of rainfall events beginning with the 2010 flood. Id. 309:9–15. And ultimately, he
testified, his charge was to “develop an opinion as to what . . . is happening and what might be
causing some of that flooding—contributing to that flooding.” Id. 309:18–21. He was also asked
to review and comment on the report of the government’s expert hydrologist, Dr. Thompson. Id.
309:22–310:3.
Dr. Reely formed his opinions primarily on the basis of his physical observations of the
property and the surrounding areas, including the berm and the restoration channel. Id. 310:6–21.
He visited/viewed the property three times: (1) in October 2013, id. 334:23–24, 443:9–11; (2) in
January 2014 (via airplane), id. 336:21–337:7, 443:12–13; and (3) on October 30, 2015, id.
337:19–22. He also reviewed historic aerial photographs and flood data for the area, as well as
topographic maps, and FEMA Flood Insurance Rate Maps. Id. 310:21–311:13.
1. Dr. Reely’s Opinion as to Causation
Based on his observations, as well as the photographs and maps he reviewed, Dr. Reely
concluded that the “predominant” cause of the flooding of the Patch of Heaven was “the
construction of the diversion dam and the obstruction of a natural course of Carson Slough.” Tr.
vol. 2, 427:17–23. According to Dr. Reely, before FWS installed the berm and restoration
channel, when floodwaters came down from the upper watershed and the western side of the
15
Carson Slough, they flowed down the “natural trace” of the Carson Slough—a channel that runs
along the very western edge of the Slough north of Plaintiff’s property. Id. 340:4–10. 14 Dr. Reely
testified that “under natural conditions, big parts of that flow” would discharge out of the Carson
Slough through a series of “off-ramps” on its western bank, thereby avoiding entirely the
developed portion of the Ministry’s property where the buildings and church camp are located.
Id. 340:11–341:7, 342:18–21, 367:8–18, 344:4–14, 355:10–24.
Dr. Reely testified that when FWS placed the diversion berm in the path of the natural
trace, it disturbed this historical regime. Id. 341:2–7. Doing so, according to Dr. Reely, not only
prevented spring water from flowing through the trace, but it also blocked the path of flood
water. Id. 344:17–18, 370:6–8. According to Dr. Reely, the berm kicked flood flow out to the
southeast, where the flood waters would “tr[y] to follow the trace of the restoration channel.” Id.
344:18–19, 370:8–17. The capacity of the restoration channel, however, was insufficient to
contain the volume of floodwater passing through that point of the Carson Slough. Id. 340:19–
22. As a result, Dr. Reely opined, the water would “break[] out” of the western bank of the
restoration channel “at a number of locations.” Id. 344:20–23. After escaping the restoration
channel, according to Dr. Reely, the water would enter an intervening and pre-existing system of
braided channels (“the braided channels” or the “braided channel network”) that drain west and
southwest down an elevation of approximately “six to ten feet.” Id. 344:24–345:11, 351:8–17. 15
The braided channels, which Dr. Reely physically observed, id. 356:1–3, orient generally
to the south-southwest, id. 356:4–7. Some track directly towards the Patch of Heaven, while
others track to the north side of the property and would exit into the natural drainage system to
the west of the property. Id. 356:4–14. The network of braided channels predates the
construction of the restoration channel. Id. 356:15–23. As more flooding has occurred, Dr. Reely
opined, the channels are getting deeper and wider and the network itself is becoming more
defined. Id. 357:2–5. This change in the hydraulic flow regime, testified Dr. Reely, will increase
the amount of floodwater that exits the restoration channel and enters the Patch of Heaven via the
braided channels. Id. 357:6–15.
14
Plaintiff’s Exhibit 77 is an aerial photograph that depicts the “natural trace.” See PX 77. The
right side of the photograph is north. The dark colored north-south channel that runs parallel and
to the west of the straight manmade channel (irrigation ditch) is the natural trace, which is
usually dry but carries floodwater during flood events. Tr. vol. 2, 340:4–8. This channel is at the
very edge of the Carson Slough. Various “off-ramp” channels flow out of the natural trace to the
west (“off-ramp channels”). Id. 340:11–12, 342:18–20. The off-ramp channels are heavily
vegetated, and the vegetation that surrounds the channels is visible in the photograph. See PX 77;
tr. vol. 2, 342:9, 353:12–16, 354:2–5.
15
The braided channels are also visible in Plaintiff’s Exhibit 77. They are in the bottom left
quadrant of the image and are located directly to the southwest of the restoration channel. See
PX 77.
16
2. Supporting Data
According to Dr. Reely, his expert opinion is supported by evidence he observed during
his site visits and his analysis of aerial photographs. See tr. vol. 2, 310:6–311:13.
First, Dr. Reely testified, his opinion is supported by aerial photographs. Id. 310:21–24.
Specifically, he cited Plaintiff’s Exhibits 150 and 151, which depict conditions after the peak
flow passed through during the flood of 2015. See PXs 150, 151; tr. vol. 2, 380:21–381:4
(describing Plaintiff’s Exhibit 150); tr. vol. 2, 368:21–369:1 (describing Plaintiff’s Exhibit 151).
Those photographs show milky brown flood water in the restoration channel, but no water at all
in the natural trace or the off-ramp channels. Tr. vol. 2, 380:20–382:2 (describing Plaintiff’s
Exhibit 150); id. 373:23–374:12, 374:23–375:11 (describing Plaintiff’s Exhibit 151). Dr. Reely
testified that the photographs indicated that floodwater did not overtop the diversion berm and
never entered the natural course of the Carson Slough but was instead entirely diverted by the
berm as he had opined. Id. 381:15–20.
Second, Dr. Reely testified that he observed silt with “alligator cracking” on Plaintiff’s
property and in the channels of the braided network. Id. 350:18–25. This cracking, Dr. Reely
explained, shows that the restoration channel was carrying floodwater diverted by the berm and
that this water entered into the braided channels. Id. 347:20–348:8. As Dr. Reely explained it,
floodwaters pick up silt, including fine grain material and clay. Id. 348:2–4. When floodwater
leaves the restoration channel and enters the braided channels, the rate of flow gradually declines
allowing the silt to drop out of the water. Id. 348:9–19. As a result, a thin layer of “whitish” silt
settles on surfaces traveled by the floodwater. Id. 348:19–23. The clay component shrinks as it
dries out causing a distinct pattern of cracks called “alligator cracking.” Id. 349:12–15. In a dry
environment, the alligator cracking pattern can remain for several years following flood events
before it starts to break down and be reincorporated into the soil profile. Id. 349:21–350:17.
Third, Dr. Reely testified that he observed features of the natural western discharge
channels which indicated that floodwater entered those channels from the side (that is, from the
restoration channel) rather than from the north (through the natural trace). Id. 378:9–17. He
explained that the western discharge channels are generally oriented north-south. Id. 378:14–15.
In his opinion, it was clear that water had cascaded into those channels from the sides because
sideways moving water, which has a lot of energy, erodes the stream bank and creates a
“headcut.” Id. 378:15–25. 16 Had the water flowed from the north from the natural trace,
explained Dr. Reely, the vegetation in that area would have caused the water to slow down and
have less velocity than water “dumping” into the western discharge channel from the side. Id.
379:5–16. If repeated flooding occurs, Dr. Reely concluded, the energy of the sideways moving
water will continue eroding the bank until a new drainage system becomes stable. Id. 379:19–
380:3.
16
A headcut is an erosional feature of some streams with an abrupt vertical drop. Regional
Stream Stewardship and Recovery Handbook, Commonly Used Terms,
https://streamhandbook.org/commonly-used-terms (last visited September 8, 2021).
17
3. Dr. Reely’s Opinion Regarding Rainfall
Dr. Reely, as noted, was also asked to analyze the statistical relevance of the rainfall
events that preceded the four flood events cited in the Ministry’s complaint. To that end, he
gathered twenty-four-hour rain gauge data for: December 22, 2010; December 23, 2010; October
18, 2015; January 8, 2016; and July 3, 2016, using the three rain gauges closest to the Patch of
Heaven. 17 He compared rain-gauge data collected for twenty-four-hour rainfall events that
preceded the flooding to data published in the National Oceanographic and Atmospheric
Administration’s (“NOAA”) precipitation frequency database. Tr. vol. 2, 393:17–22. Based on
his comparison, he concluded that the rain events “that led to specifically the peak discharge
associated with each of the floods” which he reviewed were not “statistically excessive.” Id.
392:14–18.
Specifically, he concluded that the rainfall captured by the Amargosa Farms rain gauge
over one twenty-four-hour period equated to a one-year event for December 23, 2010, and fell
between a one- and two-year event for December 22. Id. 412:10–25. The Desert Wildlife Refuge
gauge for December 23, 2010, showed precipitation frequency approaching a ten-year event. Id.
414:5–9. Last, the Desert Rock Airport gauge for December 23, 2010, showed precipitation
frequency between a five- and ten-year event. Id. 415:9–12.
Similarly, rainfall on October 18, 2015, for the Desert Rock Airport rain gauge correlated
to something less than a one-year event. Id. 415:21–416:16. Finally, he testified, the NOAA
tables revealed that the rainfall on January 8, 2016, for the same gauge was approximately a one-
year rainfall event and rainfall on July 3, 2016, was less than a one-year event. Id. 416:24–
417:20.
Testimony of the Government’s Expert Hydrologist
Qualifications
The government’s expert, Dr. David Thompson, is a self-employed civil engineer and
hydrologist. Tr. vol. 3, 786:23–787:1. Dr. Thompson holds a Ph.D. in civil engineering with an
emphasis on hydraulics and hydrology. Id. 787:5–7. He maintains a license in professional
engineering in three states and has a certification in hydrology issued by the American Institute
of Hydrology. Id. 787:21–788:1. In the past, he has worked for private consulting firms, the
United States Geological Survey (“USGS”), and Texas Tech University, where he taught
graduate and undergraduate course in hydrology, hydraulics, and numerical methods for fourteen
years and directed several sponsored research studies. Id. 789:24–790:6, 788:5–18. Dr.
Thompson has participated in more than thirty research studies, published approximately fifty
conference proceedings, and written thirty referee papers. Id. 788:22–789:4, 792:7–8.
17
The three gauges were: (1) Desert Rock Airport rain gauge located in the upper northeastern
quadrant of the watershed, tr. vol. 2, 396:5–17; (2) the Desert Wildlife Refuge rain gauge located
just south of Plaintiff’s property in the watershed, id. 396:19–397:4; and (3) the Amargosa Farms
rain gauge located northwest of Plaintiff’s property just beyond the western boundary of the
watershed, id. 397:6–12.
18
Dr. Thompson began doing private consulting work in the mid-1970s, id. 789:7–10, and,
other than a stint with the USGS, id. 789:24–790:1, he has since continued to consult on a variety
of projects requiring his expertise in hydrology and hydraulics, id. 790:12–25. Dr. Thompson has
consulted on over fifty projects during his career as a hydrologist. Id. 792:3–7.
The Court qualified Dr. Thompson as an expert in the fields of hydrology and hydraulics.
Id. 805:10–11.
Dr. Thompson’s Opinion
Dr. Thompson testified that his assignment was to determine the cause of flooding for the
flood events cited in the Ministry’s complaint, which occurred in December 2010, October 2015,
January 2016, and July 2016. Tr. vol. 3, 794:10–15. To that end, he made three field visits to the
Carson Slough and the Patch of Heaven in January 2014 and in August and December of 2017.
Id. 799:17–800:2, 807:4–6. He also reviewed topographic data and aerial photographs. Id.
797:13–17. In addition, he prepared hydraulic and hydrologic models. Id. 795:7–16.
Based on the information drawn from these sources, Dr. Thompson concluded that the
capacity of the restoration channel was too small to have caused the flooding that occurred at the
Patch of Heaven during each of the four events of 2010, 2015, and 2016. Id. 813:2–15. Instead,
he opined, the floodwater that invaded the Patch of Heaven in 2010 and 2015, as well as that
which saturated the northeast field in 2016, had flowed from the western to the eastern side of
the Carson Slough floodplain north of the berm. Id. 820:1–6. It then flowed down through
existing flood channels and over the restoration channel entering the existing braided channel
network, which routed it directly onto the Ministry’s property. Id. 837:18–23.
Dr. Thompson used two types of modeling software to analyze the causes of the flooding
during the four events at issue: the Hydrology Engineering Center’s Hydrologic Modeling
System (“HEC-HMS”), id., 795:7–8, and the one-dimensional (“1D”) version of the Hydrology
Engineering Center’s River Analysis System (“HEC-RAS”), id. 795:10–11, 795:24, 868:15–18.
Both types of software were created by the Army Corps of Engineers and are used by
hydrologists worldwide. Id. 795:7–11.
A HEC-HMS (hydrologic) model is “a rainfall runoff model or a watershed model” that
hydrologists use to analyze how a watershed “transform[s]” rain “into a flow rate that exits the
watershed at the outlet.” Id. 795:7–8, 795:19–23. In other words, it calculates the peak discharge
for the rain event being examined.
Creating the HEC-HMS model requires the hydrologist to input certain relevant data.
Here, Dr. Thompson input topographic data into the model to delineate the watershed. Id.
797:23–24, 798:13–14, 800:3–20. He also input data about the composition of the soils. Id.
798:22–799:3, 800:23–801:18. This data enables the model to estimate “how much rain enters
the soil and is lost and how much is left over to produce runoff that then moves across the
watershed to the outlet from the watershed.” Id. 801:14–18.
19
After he built the model, Dr. Thompson input rain gauge data “to produce estimates of
discharge for the events in question from the Carson Slough watershed at a location near
plaintiff’s property.” Id. 807:15–21. He chose a rain gauge that was within the watershed
boundary and that measured rainfall in intervals of less than twenty-four hours. Id. 807:15–17,
826:2–25. Dr. Thompson also performed indirect measurements during his field visits to provide
an “independent means of . . . examining the discharge from [the] Carson Slough.” Id. 807:23–
808:3.
In addition to the HEC-HMS (hydrologic) model, Dr. Thompson created a one-
dimensional HEC-RAS (hydraulic) model “to examine how flow moves through the Carson
Slough floodplain,” which he constructed “with input from HEC-HMS” as well as “whatever
supporting calculations were required.” Id. 795:10–14, 795:24–796:2. He input topographic data
that defined the watershed. Id. 798:14–17, 800:3–5. He also input soils data so the model could
take into consideration their ability to shed or absorb water, id. 798:22–799:3, and a “parameter”
to estimate the floodplain’s “roughness,” which is a measure of the friction (usually the amount
of vegetation) that water encounters that causes it to lose energy when it passes over land, id.
832:22–833:13. Finally, Dr. Thompson input into the HEC-RAS model the volume of flood flow
his HEC-HMS model had calculated that the rainfall generated during the four flood events. Id.
795:24–796:1.
Based on his modeling and physical observations, Dr. Thompson came to three primary
conclusions. First, based on the HEC-HMS model, he found that the restoration channel could
not have had any meaningful impact on flood flows entering the Patch of Heaven during the
events at issue. Specifically, that model revealed that: (1) the peak discharge in the Carson
Slough was approximately 3,200 cfs during the December 2010 flood event, 1,570 cfs during the
October 2015 event, 1,720 cfs during the January 2016 event, and 1,620 cfs during the July 2016
event, id. 814:19–815:6; 18 and (2) that the restoration channel’s maximum flow capacity at the
upper end of the channel was approximately 75 cfs when Dr. Thompson first visited the site in
2014 and 35 cfs when he returned in 2017, id. 809:19–25, 810:5–6. 19 When he looked at the
18
Dr. Thompson testified that because the HEC-HMS model provides only estimates of flood
flow, he checked those estimates by taking “indirect measurements.” Tr. vol. 3, 807:23–808:3.
Specifically, he examined high-water marks observed in an area upstream of Plaintiff’s property
and used them along with the geometry of the channel to “make an estimate of flow rate.” Id.
799:4–11, 815:15–20. The high-water marks allowed Dr. Thompson to measure the width and
depth of flow at that location. Id. 815:25–816:6. Then, using “computations based on open
channel hydraulics,” he estimated the flow that had caused the high-water mark. Id. 816:6–9. Dr.
Thompson’s indirect measurements led him to conclude that the upper and lower bounds of the
peak discharge in recent flood events were 4,500 cfs and 1,400 cfs, respectively. Id. 815:25–
816:9, 816:17–20. These estimates gave Dr. Thompson confidence that the outputs of the HEC-
HMS model were “reasonable.” Id. 816:23–817:6; see also id. 833:18–835:25 (testifying as to
how high-water marks are determined and used to estimate depth and area of flow).
19
The restoration channel’s capacity decreased, he explained, because the amount of vegetation
in and along the restoration channel increased in the ensuing years, which decreased the capacity
of the channel. Tr. vol. 3, 810:1–7.
20
HEC-RAS model he constructed of the restoration channel itself, it showed that if as little as 150
to 200 cfs entered the channel, it would “readily spill[] out,” leaving only 35 cfs remaining. Id.
812:15–25. Dr. Thompson therefore concluded that the capacity of the restoration channel
(whether 35 or 75 cfs) was far too limited to carry the thousands of cfs of flood flow that came
down the watershed for any of the four events. Id. 813:2–813:15 (opining that “[t]here’s just no
capacity [for the restoration channel] to carry significant amounts of flow”).
Second, in an effort to determine what had caused the flooding on the Patch of Heaven,
Dr. Thompson built a HEC-RAS model of the Carson Slough floodplain and the Patch of Heaven
that did not include the berm and restoration channel. Id. 817:14–16. Dr. Thompson concluded
that the Patch of Heaven would have flooded during each of the four events of 2010, 2015, and
2016 even if the restoration channel had never been built. Id. 817:17–818:1, 818:7–17, 870:5–22.
Dr. Thompson ran the 1D HEC-RAS model twice using two volumes of peak flood flow:
one based on the HEC-HMS model’s estimated discharge of 3,200 cfs to show the approximate
depth of flow during the December 2010 flood event; id. 846:21–847:2; and another based on the
HEC-HMS model’s estimated discharge of 1,600 cfs to approximate the floods of October 2015,
January 2016, and July 2016; id. 849:24–850:6. 20 The models showed that the Patch of Heaven
would flood anytime peak discharge in the Carson Slough reached a volume of 1,600 cfs or
more. Id. 817:9–13.
Finally, Dr. Thompson concluded based on physical observations and topographic data
that the flooding at the Patch of Heaven was the result of “rainfall-derived flood runoff” that
migrated from the western to the eastern side of the Carson Slough floodplain. Id. 814:10–13,
818:7–17, 820:1–6. He explained that there was a “relative . . . topographic high” upstream of
the berm, id. 846:3, where, he stated, flood flow would readily cross over from the west to the
east side of the Carson Slough and tend to stay on the east side as it coursed down the floodplain,
id. 819:6–12.
Dr. Thompson testified that his HEC-RAS model of the Carson Slough validated his
conclusions based on his field observations and review of topographic data. It showed that for
flood flows of 1,600 cfs or more, floodwaters on the western side of the model would cross over
to the eastern side, id. 843:7–11, because the “depth [of the flood flow] is greater than the
intervening [topographic] high between the western and the eastern [sides of the] floodplain,” id.
847:12–18. 21
20
Dr. Thompson’s 1D HEC-RAS model combined four different 1D HEC-RAS models into one.
Tr. vol. 3, 843:24–844:1. Two of the models, Dr. Thompson explained—specifically his models
of the east and west sides of the Carson Slough floodplain—were particularly important and
allowed him to determine approximately how much flow would be on the east side of the
floodplain. Id. 844:1–7. The other two models, which focused on areas on or near Plaintiff’s
property, allowed him to estimate the depth of flow on Plaintiff’s property and the discharge
passing through the western discharge channels. Id. 844:7–11.
21
As a 1D HEC-RAS model is limited in its ability to show lateral movement of water, tr. vol. 3,
869:17–19, Dr. Thompson inserted a “lateral weir” in the model at the topographic high between
21
Once the water was on the eastern side of the floodplain, Dr. Thompson opined, it would
“readily bypass the restoration channel and proceed on in a natural direction towards [the]
plaintiff’s property.” Id. 818:7–17. Dr. Thompson’s thesis is consistent with two aerial
photographs, Plaintiff’s Exhibits 108 and 151, which show floodwater to the northeast of the
restoration channel crossing over it. Id. 854:18–855:5 (describing Plaintiff’s Exhibit 108); id.
810:25–811:2, 814:2–7 (describing Plaintiff’s Exhibit 151). According to Dr. Thompson, once
floodwater passed over the restoration channel it would enter the braided channel network to the
southwest. Id. 836:22–837:4, 837:20–23; see also id. 854:18–855:2 (testifying that the aerial
photograph comprising Plaintiff’s Exhibit 108 showed water crossing the restoration channel and
entering the braided channel network). From there, he testified, floodwater would be conveyed
directly to the northeast corner of the Patch of Heaven, where the buildings are located. Id.
837:20–23, 838:11–17. Some of that water would break off into the western discharge channels,
but the remainder would run across the church camp, most likely as sheet flow. Id. 843:16–21.
Dr. Thompson’s HEC-RAS model showed that flow remaining on the western side of the
floodplain (the flow that did not overtop the topographic high between the east and west sides of
the floodplain), would still exit through the off-ramp channels along the natural trace. Id.
847:18–20. Dr. Thompson stated that he visited the site of one of the off-ramps and “confirm[ed]
that it is actively discharging water whenever there’s significant flows within the Carson Slough
floodplain.” Id. 839:15–23. Dr. Thompson opined therefore that neither the restoration channel
nor the berm has a significant impact on whether flow on the western side of the floodplain will
be able to enter the natural trace and leave through the off-ramp channels on its western bank. Id.
842:2–17.
Testimony of the Government’s Expert Meteorologist, Jay Rosenthal
At trial, the government presented the testimony of Jay Rosenthal, a meteorologist. Mr.
Rosenthal has been working as a professional meteorologist since 1963. Tr. vol. 4, 929:19–21.
He has a bachelor’s degree in meteorology from New York University and master’s degree in
meteorology from the University of California, Los Angeles. Id. 929:22–930:1. He spent over
thirty-eight years as a civilian meteorologist for the United States Navy until he retired in 2001.
Id. 930:19–22. He has also served as a consultant and worked part time as a research leader for
Battelle, working on weather issues related to homeland security. Id. 932:15–23. The Court
qualified Mr. Rosenthal as an expert in meteorology. Id. 933:7–8.
Mr. Rosenthal was asked to evaluate the flooding events described in the complaint from
a meteorological standpoint to determine whether there were any noteworthy weather events that
could explain the four episodes. Id. 929:2–6. To do so, he considered “[w]hatever ground-based
rain gauge data was available, not just in the immediate area, but in the surrounding area.” Id.
934:2–5. As Mr. Rosenthal explained, however, “particularly in a desert region, you don’t have
the luxury of having as many weather stations as you would, say, in an urban area.” Id. 933:23–
934:1. Because of the spatial gaps, he also looked at radar data, id. 934:8–10, and satellite
the east and west sides of the floodplain to account for side-to-side movement, id. 845:18–846:8;
see also id. 869:6–19 (agreeing that a 1D HEC-RAS is “limited in its ability to . . . make
computations with energy in the lateral direction”).
22
imagery to get “the big picture,” id. 934:13–16, as well as National Weather Service bulletins
and advisories that provide warnings about inclement weather and potential flooding, id. 934:17–
23. See also id. 975:13–976:8 (explaining the sources of data a professional meteorologist uses to
address the scarcity of rain gauges in an area like the Carson Slough watershed).
Mr. Rosenthal testified that based on all of the data he considered, in his opinion, all four
flooding events at the Patch of Heaven (particularly those that occurred in 2010 and 2015) were
immediately preceded by “noteworthy” and “significant” weather events. Id. 937:15–18. For
example, there was a particularly strong and persistent “atmospheric river” during the period that
preceded the flooding at the end of December 2010. Id. 941:15–942:2, 942:21–943:8. This
atmospheric river impacted all of the Southwestern states, including Southern Nevada and the
Ash Meadows area in particular. Id. 944:14–18. It resulted in six days of rainfall in the area,
beginning December 17 and lasting through December 22, the day of the heaviest rainfall. Id.
942:12–20. During that period, Mr. Rosenthal testified, the amount of rainfall “dwarfed the
normal amounts expected” in the Carson Slough. Id. 948:7–13. In fact, he stated, for the six- to
seven-day period that the rain fell in the region, it averaged three hundred to five hundred
percent of the normal amount for the entire month of December. Id. 948:7–18. The rain gauge
for Amargosa Farms, which is just to the west of the Carson Slough watershed, showed that
during a three-day period, 1.77 inches of rain fell, which was 385% of the average rainfall for the
entire month of December. Id. 949:17–18, 950:17–20. 22 In addition, bulletins from NOAA as
well as the National Weather Service reveal widespread flooding across Southern Nevada. Id.
951:23–952:11.
Mr. Rosenthal testified that, similarly, in October of 2015, the southwestern United States
was in the midst of one of the strongest El Niño conditions on record. Id. 957:25–958:2. During
that period, storm systems were “really energized,” resulting in “periods of thunderstorms over
the deserts that dumped a lot of rain.” Id. 959:6–8. Mr. Rosenthal testified that the first period of
thunderstorms occurred on October 4 and 5, and then another occurred October 15 through 18,
just before flooding was observed on the Ministry’s property. Id. 959:20–960:12. He observed
that satellite imagery from October 18 showed “a whole line of thunderstorm activity moving
from south to north right through the watershed area that may or may not be reflected by the few
rain gauges” on the watershed’s periphery. Id. 963:9–13. Further, radar imagery showed that
“tremendous amounts of rain” fell “throughout the heart of the watershed” in a one-hour period
on October 18, between 10 and 11 AM. Id. 964:7–17. As a result, the National Weather Service
issued flood warnings, including warnings covering the Amargosa Valley. Id. 964:18–966:2.
Turning to the January 8, 2016 flood, Mr. Rosenthal testified that during the three-day
period that ended on January 6, there were a series of storms that came through the region, and
that, because it was another El Niño year, the storms were very energized. Id. 966:23–967:1. He
further stated that satellite imagery showed that on January 5 at around 4:30 PM, Ash Meadows
was experiencing moderate to heavy precipitation. Id. 967:9–24. Mr. Rosenthal also noted that
during this event there were widespread winter storm advisories regarding the severity of the
weather in Southern Nevada. Id. 969:2–16.
22
The Amargosa Farms gauge is one of two or three stations upstream and within 15 miles of the
Ministry’s property. Tr. vol. 4, 982:9–20.
23
Finally, Mr. Rosenthal stated that, just before the flooding that occurred on July 3, 2016,
very strong thunderstorms struck the area on June 30, July 1, and July 2. Id. 970:2–5. On June
30, powerful thunderstorms moved up from the south, and radar images show rainfall as much as
two inches in an hour in the region. Id. 971:8–13. They also show total rainfall of roughly
two-and-one-half inches from June 30 to July 1. Id. 971:25–972:7. As with the October 2015 rain
event, there were severe thunderstorm warnings and flood advisories some of which involved the
area of interest within Nye County. Id. 972:12–973:4.
DISCUSSION
Fifth Amendment Takings Standards
The Fifth Amendment to the United States Constitution provides that “private property”
shall not be “taken for public use, without just compensation.” U.S. Const. amend. V. To
establish entitlement to compensation under the Takings Clause, a plaintiff must first show that it
has “a property interest for purposes of the Fifth Amendment.” Members of the Peanut Quota
Holders Ass’n v. United States, 421 F.3d 1323, 1330 (Fed. Cir. 2005) (citing Conti v. United
States, 291 F.3d 1334, 1339 (Fed. Cir. 2002)). Once the plaintiff has established that it has a
property interest, as it is undisputed the Ministry has here, it must show that the government’s
actions “amounted to a compensable taking of that property interest.” Am. Pelagic Fishing Co. v.
United States, 379 F.3d 1363, 1372 (Fed. Cir. 2004).
It is well established that “government-induced flooding” of property can constitute a
compensable “taking” for purposes of the Fifth Amendment. See Ark. Game & Fish Comm’n v.
United States, 568 U.S. 23, 32 (2012) (noting that, “where real estate is actually invaded by
superinduced additions of water, earth, sand, or other material . . . so as to effectually destroy or
impair its usefulness, it is a taking, within the meaning of the Constitution”) (quoting Pumpelly
v. Green Bay Co., 80 U.S. 166, 181 (1872)). Further, flooding caused by government action need
not be permanent in nature to be treated as a taking. Government action that causes regularly
recurring flooding, as is alleged here, may “g[i]ve rise to a takings claim no less valid than the
claim of an owner whose land was continuously kept under water.” Id. (citing United States v.
Cress, 243 U.S. 316, 328–29 (1917) (noting that the government may effect a taking via
“intermittent but inevitably recurring overflows” no less than by permanently inundating the land
by water)); see also Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021) (observing that
“the government [] effects a physical taking when it occupies property . . . by recurring flooding
as a result of building a dam”).
As with other physical takings, however, to establish a compensable taking based on
recurrent flooding, the plaintiff must show by preponderant evidence that the government’s
actions were the direct and proximate cause of the flooding. St. Bernard Par. Gov’t v. United
States, 887 F.3d 1354, 1362 (Fed. Cir. 2018); Sanguinetti v. United States, 264 U.S. 146, 149–50
(1924); Loesch v. United States, 645 F.2d 905, 920 (Ct. Cl. 1981). Put another way, the plaintiff
must “establish that government action caused the injury to their properties,” i.e., “that the
invasion was the ‘direct, natural, or probable result of [that] authorized activity.’” St. Bernard
Par. Gov’t, 887 F.3d at 1359–60 (quoting Ridge Line Inc. v. United States, 346 F.3d 1346, 1355
24
(Fed. Cir. 2003)); see also Cary v. United States, 552 F.3d 1373, 1380 (Fed. Cir. 2009) (“For an
injury to be a compensable taking, the court must determine that no break in the chain of
causation existed between the suspected government authorized action and the injury.”). The
plaintiff must also “show that in the ordinary course of events, absent government action, [it]
would not have suffered the injury.” St. Bernard Par. Gov’t, 887 F.3d at 1362. In other words, it
must show “‘what would have occurred’ if the government had not acted.” Id. (quoting United
States v. Archer, 241 U.S. 119, 132 (1916)).
For the reasons set forth below, the Court finds that the Ministry did not prove that the
government’s construction of the berm and restoration channel caused the flooding that occurred
on its property. Nor did it prove that the flooding would not have occurred but for the project.
The Court therefore enters judgment for the government as to the Ministry’s takings claim.
Causation
The Ministry’s Allegation that the Camp Property Never Flooded Until After
the Government Built the Berm and Restoration Channel
A key allegation underlying the Ministry’s causation argument is that the northeast
portion of its property—i.e., the part of the property where the camp buildings are located—
never flooded until after FWS built the berm and restoration channel or at least that there is “no
evidence” that it did. Pl.’s Post-Trial Opening Br. (“Pl.’s Post-Trial Br.”) at 5, ECF No. 139. To
support its assertions, the Ministry relies largely if not entirely on the testimony of Pastor
Fuentes and Ronald Matheny, the prior owner. For the reasons set forth below, however, the
Court concludes that preponderant evidence shows that the area where the camp is located has
flooded in the past, before the channel was built.
Pastor Fuentes testified at trial that, beginning in late 2006, when the Ministry purchased
the property, see JX 5, and up until the project was completed in August 2010, the property had
never experienced the kind of severe flooding that later occurred in 2010 and 2015, tr. vol. 1,
99:11–17. But as described above, Pastor Fuentes also acknowledged during his RCFC 30(b)(6)
deposition that “the first time the property flooded” while the Ministry owned it was in 2007.
Ministerio Dep. 96:12–15. The day of and the day before that flooding event it had rained on the
upper watershed. Tr. vol. 1, 143:25–144:10. Pastor Fuentes testified that as rainfall flowed down
the watershed, id. 144:11–13, muddy water slightly overtopped the culvert and the banks of the
irrigation ditches, id. 78:18–79:23, 99:11–17, 141:1–5. And the floodwater dumped mud and silt
into a pond on the property that was fed by one of the irrigation ditches, id. 78:23–79:14,
requiring that Pastor Fuentes close it, id. 78:24–79:2, and hire a contractor to excavate it, id.78:8–24.
The irrigation ditch that dumped floodwater in the pond ran through the northeastern
corner of the property, where the church camp was located. The Ministry downplays the
significance of this incident as an example of flooding that occurred before the project was built.
Pastor Fuentes appears to have believed that the incursion of flood waters was unusual and the
result of work FWS happened to be performing upstream. Id. 78:19–24. But FWS was not
performing work upstream. JS no. 10 (“Construction of the Fairbanks and Soda Springs
25
Restoration Project began in December 2009.”). The 2007 incident thus represented a pre-project
example of floodwaters entering the church camp area and causing at least some damage after
several days of rainfall in the upper watershed.
Mr. Matheny’s testimony also does not persuade the Court that all of the flooding which
occurred after the restoration project was completed was dramatically different from what had
occurred before. Mr. Matheny owned the property for over nine years, beginning in January
1997. PX 269 (quitclaim deed dated January 28, 1997). When he purchased the property, it was
“just bare land, sagebrush, and that’s it.” Tr. vol. 1, 170:16–19. Mr. Matheny cleared the land,
planted grass and trees, and kept the grass watered. Id. 170:20–24, 171:11–14, 179:1–10. He
testified that during his period of ownership he had never seen anything comparable to the
flooding that occurred in 2010. Id. 173:10–174:4, 189:21–190:4.
The Court does not question Mr. Matheny’s observation that he had never seen floods on
the property that compared with the 2010 flood. As described above, the flooding that occurred
on the property in 2010 was the most severe of the four events cited in the complaint. The
flooding that Pastor Fuentes witnessed on December 23 followed six days of rainfall whose
amounts Mr. Rosenthal testified “dwarfed the normal amounts expected” in the Carson Slough.
Tr. vol. 4, 948:7–13. Indeed, the rainfall during this six- to seven-day period was several times
the normal amount of rainfall for the entire month of December. Id. 948:13–18.
The Court found unpersuasive Dr. Reely’s testimony that the amount of rainfall that fell
in the days before the 2010 flood was unexceptional and no different from the rainfall that
occurred during Mr. Matheny’s period of ownership. Tr. vol. 2, 392:14–18. Dr. Reely considered
only rain gauge data and based his opinion on how much rain fell in a twenty-four-hour period.
Id. 393:17–22. In a desert area, there are relatively few rain gauges. Mr. Rosenthal, who, unlike
Dr. Reely, is an expert in meteorology, was able to address the spatial gaps by using radar,
satellite imagery, and other tools. See tr. vol. 4, 934:8–10, 934:13–23, 975:13–976:8.
Moreover, as Mr. Rosenthal testified, by looking only at an artificial twenty-four-hour
period, “you miss the significance of what was going on.” Id. 974:15–25. Dr. Reely was
“missing a big part of the picture of what actually occurred during each of these four flooding
events . . . especially for the December 2010 event, because that was a long duration event that
stretched six days.” Id. 974:16–20.
Further, the precipitation frequency will be different depending on the duration of a rain
event. Id. 974:15–975:8; see also tr. vol. 2, 463:15–464:20 (Reely testimony, agreeing on cross-
examination that the precipitation frequency will vary depending on the duration examined).
Rainfall of an inch in a twenty-four-hour period, for example, may be a common occurrence. But
if an inch of rain falls every day for six days or over the course of an hour, then that could equate
to a much lower statistical probability of reoccurrence. Tr. vol. 4, 955:18–25. The Court
therefore finds Dr. Reely’s use of only twenty-four-hour rain gauge data in his analysis a flawed
approach.
The Court credits Mr. Rosenthal’s opinion that, even if rain gauge data alone is used, the
rainfall that preceded the 2010 flood was likely to occur only once every twenty-five years. Id.26
988:2–7. 23 The fact that Mr. Matheny never saw any flooding comparable to that which occurred
in 2010 therefore does not give rise to an inference that the flooding in 2010 was caused by the
restoration project.
Further, the Court does not understand Mr. Matheny’s testimony to be that the property
never experienced any flooding at all during other heavy rainfall events that occurred while he
owned the property. To the contrary, Mr. Matheny acknowledged that during heavy rainstorms
the property would “puddle up” and become “a sloppy mess.” Tr. vol. 1, 173:10–16. His
description of the property as “puddle[d] up” and “a sloppy mess” is imprecise. But it is not
inconsistent with the photographs and Pastor Fuentes’s description of the state of the northeast
portion of the property after several of the other less severe flood events. 24 Mr. Matheny did not
visit the property during or immediately following any flood event besides the one that occurred
in 2010 and therefore could not offer a comparison except as to the 2010 flood.
Equally important, the Ministry’s claim that before the restoration project the northeast
corner of the Ministry’s property never flooded is contrary to other evidence both circumstantial
and direct. To begin with, the property is located at the bottleneck of the Carson Slough
floodplain. JX 3 (FWS map of the Refuge and Carson Slough indicating the location of the
property). It is undisputed that other parts of the Ministry’s property to the west of the location of
the camp have flooded in the past. Tr. vol. 1, 182:8–11 (Matheny testimony). The Carson Slough
has flooded multiple times in recent memory, tr. vol. 2, 285:12–16 (Johnson testimony); tr. vol.
3, 610:10–11, 640:3–9 (Andress testimony), including in 2010 when flood water damaged roads
and infrastructure and entirely washed out the culvert that allowed the restoration channel to pass
under the Patch of Heaven access road, tr. vol. 3, 642:9–15. Further, the majority of the
forty-acre parcel the Ministry owns, including the camp itself, lies in a FEMA AO2 flood zone.
See DX 47. Because of the flood risk represented by that designation, Nye County ordinances
require property owners to elevate any buildings on their property by at least two feet. Tr. vol. 2,
286:13–287:4 (Johnson testimony).
The Ministry responds that neither the fact that the property is in a floodplain nor the fact
that parts of the Refuge have flooded with some regularity proves that the location of the Patch
of Heaven is prone to flooding. But the physical evidence also reflects that the specific site
23
This is according to the Desert Wildlife Refuge rain gauge in the watershed that Dr. Reely also
relied on. See tr. vol. 4, 976:21–977:1 (Rosenthal testimony); tr. vol. 2, 396:19–397:4 (Reely
testimony).
24
The floods in 2016, 2019, and 2020 did not flood the area where the buildings are located and
were primarily concentrated in areas away from the church camp’s buildings. Tr. vol. 1, 112:5–
19, 160:6–8 (Fuentes testimony as to January 2016 flood); id. 160:14–24 (as to July 2016 flood);
id. 115:2–14 (as to March 2019 flood); id. 116:1–18 (as to April 2020 flood); see also PXs 298,
300, 301, 306 (photographs of July 2016 event, tr. vol. 1, 113:2–114:3) (depicting areas of land
away from the buildings inundated with water); PXs 596 598, 608, 611, 620 (photographs of
March 2019 event, tr. vol. 1, 115:7–14) (depicting scattered puddles); PXs 703, 705
(photographs of March 2020 flood, tr. vol. 1, 116:1–117:20) (depicting flooding in the northeast
field only).
27
where the camp was built has flooded in the past. First, just to the northeast of the developed part
of the property is a network of braided channels that both experts agreed existed for many years
before the 2010 flood (even if that flood may have caused them to deepen), id. 356:15–23 (Reely
testimony); tr. vol. 3, 837:15–17 (Thompson testimony), and tracked flood water right at the
church camp’s buildings, tr. vol. 2, 356:7–14 (Reely testimony); tr. vol. 3, 837:18–23 (Thompson
testimony). Their existence reflects a history of flood waters coming from the northeast, moving
southwest, and being discharged directly into the northeast corner of the property that became
the Patch of Heaven. Tr. vol. 3, 836:22–838:17 (Thompson testimony).
Second, Mr. DesRoberts explained that certain aerial photographs—dated 1948, 1980,
1985, and 1989—depict Plaintiff’s property and the surrounding area, and show that floodwater
historically traveled through the developed portion of the property. All four photographs show
flood channels tracking directly through the northeast corner of the Patch of Heaven where the
buildings sit. Tr. vol. 3, 599:9–21, 601:12–602:4 (Defendant’s Exhibit 4) (1948 aerial image); id.602:5–20, 603:3–10 (Joint Exhibit 27) (1980 aerial image); id. 604:18–605:5, 606:7–18 (Joint
Exhibit 14) (1985 and 1989 aerial images).
Finally, the Court notes that even if it were persuaded by the Ministry’s argument that the
property did not experience significant flooding during the fourteen-year period between 1997
(when Mr. Matheny bought it) and 2010, it could not base a finding of causation on such a “post
hoc, ergo propter hoc” analysis. See Loesch, 645 F.2d at 914; see also id. at 913 (rejecting
plaintiffs’ argument that they established causation by showing that “the erosion on their
riverbanks was not a problem until after” the government constructed dams that impounded
water); Owen v. United States, 20 Cl. Ct. 574, 584 (1990) (observing that post hoc analysis “can
easily lead to wrong inferences if there are other elements of causation at work”). Determining
the precise cause or causes of the floods requires consideration of hydrology, hydraulics,
meteorology, soil conditions, and other technical subjects. The Court turns, therefore, to the
competing opinions of the parties’ experts.
The Expert Testimony
As described in detail above, the parties each presented expert testimony regarding the
extent to which the restoration project caused the flooding of the Patch of Heaven that occurred
in 2010, 2015, and 2016. For the reasons set forth below, the Court finds the testimony of the
government’s expert, Dr. Thompson, more persuasive than that of the Ministry’s expert, Dr.
Reely.
To briefly recapitulate, Dr. Reely opined that the berm FWS installed to redirect the flow
of spring water into the new restoration channel obstructed the path that floodwater coming from
the upper watershed had taken in years past. Tr. vol. 2, 344:15–19. Specifically, Dr. Reely
explained, until the berm and restoration channel were built, floodwaters would travel down the
natural trace and exit to the west of the Ministry’s property via certain off-ramp channels, never
reaching the Patch of Heaven. Id. 343:12–344:14. Dr. Reely opined that the berm blocked
floodwater from going down the natural trace, and instead kicked it to the east where it would
then flow south and bend back west in an attempt to follow the trace of the restoration channel.
Id. 344:15–19. Dr. Reely further testified that, because the restoration channel had insufficient
28
capacity to handle such large volumes of water, it would pour out of the western bank of the
channel and migrate toward the church camp, which he estimated was at a slightly lower
elevation by an order of approximately six to ten feet. Id. 344:19–23, 345:12–21, 351:8–17.
Flood flow would enter the braided channel network to the northeast of the Patch of Heaven—
where it would be directed straight into the church camp. Id. 344:23–345:3, 356:4–14.
As described above, Dr. Reely based his opinion regarding the effect of the restoration
project on his observations of the site during three visits as well as his review of topographical
maps, aerial photographs, rainfall data, and other reports. Dr. Reely performed no measurements
or calculations of the capacity of the restoration channel, never measured the size of the berm,
and did not attempt to determine the amount of flood water that came from upstream nor the
amount of water allegedly redirected by the berm during any of the events in question. He
performed no quantitative assessment of how water moves through the Carson Slough. Nor did
he perform any modeling to attempt to verify or substantiate the opinion he reached based on his
visual observations. Id. 317:7–318:9. And he provided no response to Dr. Thompson’s theory
that the water that flooded the Patch of Heaven in 2010, 2015, and beyond likely originated on
the eastern side of the Slough.
In the Court’s view, Dr. Reely’s opinion lacks a sound foundation. Eyeballing the
property and examining aerial photographs and maps strikes the Court as an analytic approach
that collides with Dr. Reely’s own observation that the Carson Slough is “a very complex bit of
terrain, and primarily because it’s very—topographically very subtle,” such that “very subtle
changes in this topography will change the way and have changed the way water flows across
this portion of the desert, of the watershed.” Id. 330:5–10.
Dr. Thompson took a more methodical approach that is consistent with what one would
expect from an expert in the field attempting to pinpoint the extent to which the restoration
project caused the Ministry’s property to flood. He testified that a “hydrologist would typically
want to do some kind of computational effort to support the formation of [his] opinions.” Tr. vol.
3, 794:19–21. In addition, he stated, “in this particular case and in many others, [a hydrologist]
might use . . . a hydrologic model for flow estimation, and then use the output from the
hydrologic model to operate a hydraulic model to determine how flow moves through the system
in question.” Id. 794:21–795:1. “And both of those efforts,” Dr. Thompson testified, “are
typically supported with some hand calculations or calculations using a spreadsheet or a similar
computational tool.” Id. 795:1–3. Dr. Reely did not use any of these methods.
Dr. Thompson has extensive experience not only as a practicing hydrologist but also in
academia, having taught hydrology at the undergraduate and graduate level for fourteen years,
led research projects, participated in numerous research studies, and published some fifty
conference proceedings. Id. 788:9–789:4, 789:19–23. The Court credits his testimony regarding
the methodology a hydrologist would ordinarily use to tackle an issue of causation like the one
presented by this case.
Dr. Reely, as noted, did not support his opinion with any measurements or quantifiable
data. Tr. vol. 2, 314:23–315:12. Further, he acknowledged that he could have used models to
justify the conclusions that he reached (and also that he uses models routinely in his work). Id.29
314:17–22, 318:10–21. But he asserted that it was unnecessary for him to build a model here
because he believed the physical evidence was so clear, id. 383:7–22, an opinion obviously not
shared by Dr. Thompson.
Because his opinion contains no supporting objective and verifiable data, Dr. Reely did
not persuade the Court that the restoration project caused the flooding about which the Ministry
complains. Moreover, Dr. Reely actually expressed no opinion—whether based on quantitative
data or otherwise—regarding whether the Ministry’s property would have flooded during the
events in question even absent the berm and restoration channel.
To be clear, the Court does not find that the berm did not divert into the church camp any
flood water that otherwise would have gone down the natural trace. 25 But Dr. Reely does not
explain for any of the flood events how much of the floodwater that would have gone down the
natural trace were it not for the berm was instead diverted east, winding up in the braided
channels and then flooding the Ministry’s property. Dr. Reely agreed that in 2010 the floodwater
overtopped the berm and followed its historic path down the natural trace. Tr. vol. 2, 442:24–
443:5. And Pastor Fuentes agreed that during the 2015 flood event, he saw “lots of water”
coming down the natural trace. Tr. vol. 1, 153:18–154:4. Therefore, the Court finds that during
both flood events at least some portion of the flood waters that came from the north continued to
follow the natural trace notwithstanding the presence of the berm. 26
Equally important, Dr. Reely’s opinion does not account for other possible causes of the
flooding. Dr. Thompson credibly testified, based on field observation and topographical data,
25
It bears noting, however, that physical evidence Dr. Reely relies on to show that the berm
caused floodwaters to be diverted into the church camp—i.e., the alligator cracking, tr. vol. 2,
349:4–350:25, and the erosion of the natural channels on the property, id. 378:5–379:4—is also
consistent with Dr. Thompson’s theory, discussed below, that floodwaters on the church camp
did not come originally from the west but instead originated on the eastern side of the Slough
and passed over the restoration channel in their southwesterly traverse down to the Ministry’s
property.
26
Plaintiff introduced aerial photographs into evidence that were taken after the October 2015
flood which show floodwater in the restoration channel and north of the berm, but not in the
natural trace of the Carson Slough. PXs 150, 151. Dr. Reely testified that these photographs
verify that floodwater never overtopped the berm in 2015 but were rather redirected by the berm
to the east—otherwise the photographs would have shown floodwater in the natural trace. Tr.
vol. 2, 373:24–374:4, 375:3–11. Dr. Thompson agreed that these photographs revealed no
floodwater south of the berm in the natural trace of the Carson Slough. Tr. vol. 3, 889:1–2,
890:19–891:17. But Dr. Reely explained that the photographs were taken after the peak flood
discharge had already passed through the area. Tr. vol. 2, 380:20–381:4. Dr. Thompson similarly
stated that because peak flood flows had passed, floodwater that overtopped the berm and went
into the natural trace would have already discharged down the trace and to the southwest of the
Carson Slough. Tr. vol. 3, 889:1–2, 890:19–891:5, 899:9–25. He further testified that the flood
water in those photographs in and around the restoration channel was residual flood flow that
had not yet discharged out the Carson Slough. Id. 899:25–900:2.
30
and as supported by his models, that the floodwaters that flowed into the Patch of Heaven likely
had flowed downstream on the eastern part of the Slough and therefore would never have flowed
into the natural trace anyway. Tr. vol. 3, 819:6–12. Dr. Thompson opined that the waters came
down from the eastern part of the upper watershed and flowed to the southwest in the form of
sheet flooding. Id. 818:9–13, 843:7–21. According to Dr. Thompson, those waters would briefly
enter the restoration channel and then exit out of it on the western bank, entering the braided
channels that feed water directly into the camp area. Id. 818:14–17, 837:18–23. Aerial
photographs support Dr. Thompson’s opinion that sheet flooding occurred in this manner, see
PXs 108, 151; tr. vol. 3, 854:18–855:5 (describing Plaintiff’s Exhibit 108); tr. vol. 3, 810:25–
811:2, 814:2–7 (describing Plaintiff’s Exhibit 151), as does the testimony of Refuge Manager
Corey Lee, who stated that he witnessed this phenomenon in the wake of the March 2019 flood,
tr. vol. 3, 752:4–9. Dr. Reely never addressed the validity of this possible alternative cause of
flooding on the Patch of Heaven, and his theory does not challenge Dr. Thompson’s conclusions
on the impact of water approaching the Patch of Heaven from the northeastern side of the Carson
Slough.
As described in some detail above, Dr. Thompson also performed measurements and
calculations and used hydraulic and hydrologic modeling to support his conclusions. Using
HEC-HMS modeling software, Dr. Thompson estimated that approximately 1,600 to 3,200 cfs of
floodwater passed through the watershed during the 2010, 2015, and 2016 flood events, and that
the capacity of the restoration channel was only between 35 to 75 cfs. Id. 814:19–815:6, 809:19–
25, 810:5–6. 27 Given the very limited capacity of the restoration channel when compared to the
volume of water coming from the upper watershed, Dr. Thompson concluded, the restoration
channel would have been overwhelmed by the floodwaters and would have at most “a minimal
impact . . . on flows that are approaching plaintiff’s property.” Id. 817:22–818:1.
Having concluded that the restoration channel could not have had a significant impact on
the movement of flood flows heading to the Ministry’s property, Dr. Thompson used a HEC-
RAS model to understand what would have occurred during the flood events in question if there
were no restoration project. The purpose of the model was to determine the source of the
flooding, assuming that it was not the berm or restoration channel. Based on that modeling, Dr.
Thompson concluded that the floodwaters that spread down the eastern side of the Carson
27
Dr. Reely agreed that Dr. Thompson’s calculations regarding the capacity of the restoration
channel were reasonable and estimated himself that the capacity is “probably somewhere in the
10 to 35 cfs range.” Tr. vol. 2, 441:4–16. Dr. Reely did, however, criticize Dr. Thompson’s
exclusion of the Amargosa Farms rain gauge in his analysis (a rain gauge that is close to the
Patch of Heaven but outside of the watershed) and stated that, had Dr. Thompson included that
rain gauge, “he may or may not have decided to use a slightly lower rainfall precipitation amount
than he used in his analysis.” Id. 331:10–17. But Dr. Thompson explained that it was his
“professional preference” to use rain gauges in his hydrologic modeling that are within the
boundaries of the watershed. Tr. vol. 3, 826:15–20. Additionally, Dr. Reely did not himself
calculate the amount of runoff in the Carson Slough using rain gauge data, so did not and could
not offer to the Court an alternative conclusion on the amount of flood flow. Tr. vol. 2, 450:13–
451:3.
31
Slough would have caused flooding of the property even if the restoration channel were not there
any time peak discharge reached a volume of 1,600 cfs or greater. Id. 817:9–13, 819:14–820:6. 28
HEC-HMS and HEC-RAS models are commonly used tools in the field of hydrology.
See tr. vol. 2, 308:8–13 (Reely testimony, stating that the HEC-RAS model is the most common
one he uses); tr. vol. 3, 794:19–795:3 (Thompson testimony, stating that a hydrologist would
“typically” make “some kind of computational effort,” such as using hydrologic and hydraulic
modeling). Dr. Reely acknowledged that he has used them “very frequently” in his work. Tr. vol.
2, 308:20–24. Models are, however, imperfect, and their accuracy depends in large part on the
assumptions and data inputs a hydrologist uses to build them. Id. 384:10–385:6. It is therefore
significant that Dr. Reely never attempted to impeach any of the specific data sets or assumptions
Dr. Thompson used to build his HEC-HMS model. See id. 334:7–14 (approving the topographic
data Dr. Thompson used to develop his hydraulic models).
Dr. Reely testified that it is important to field validate hydraulic and hydrologic models.
Id. 333:10–13. Dr. Thompson did conduct such validation as to the HEC-HMS model’s
conclusions of the amount of flood runoff during flood events. Tr. vol. 3, 817:3–6. The Court
therefore credits Dr. Thompson’s opinions, based on his HEC-HMS models, regarding the
capacity of the restoration channel and the fact that the restoration channel could not have had a
significant impact on flood flows coming down the watershed.
Dr. Reely also expressed some criticisms of Dr. Thompson’s HEC-RAS model. For
example, Dr. Reely testified that 1D HEC-RAS models, like the one Dr. Thompson employed,
have a limited capacity to predict lateral movement of water. Tr. vol. 2, 385:9–15; see also tr.
vol. 3, 869:1–19 (Thompson testimony, acknowledging that 1D HEC-RAS models are limited in
their ability to show lateral movement of water). Dr. Reely also testified that 1D HEC-RAS
models are not good at simulating changes in the momentum of water that may occur where
there are tight turns, as with water deflected off of the berm. Tr. vol. 2, 385:16–25. But Dr.
Thompson inserted “lateral weirs” that permit the model to move water laterally from one side of
the weir to the other. Tr. vol. 3, 812:10–14, 845:20–24. Dr. Reely’s testimony does not address
the extent to which the use of lateral weirs alleviated these concerns.
Dr. Reely also criticized Dr. Thompson for failing to field validate his HEC-RAS model,
tr. vol. 2, 333:10–16, as he did his HEC-HMS model, tr. vol. 3, 817:3–6. The HEC-RAS model
Dr. Thompson developed, however, was just one tool he used to help him understand the
watershed, and while field validation of the model would have bolstered the opinion he reached
based on the HEC-RAS model, the Court found the rest of his testimony regarding causation
persuasive, including his conclusions based on visual observations and the HEC-HMS model.
In its brief and on cross-examination, the Ministry also criticizes Dr. Thompson’s HEC-
RAS model on the grounds that it yielded results that were in some respects inconsistent with
evidence of what actually occurred during the 2010 and 2015 flood events. See Pl.’s Post-Trial
28
Dr. Thompson’s HEC-HMS model showed that the floods of 2010 and 2016 would have
exceeded 1,600 cfs of flow and the flood flow of October 2015 would have been 1,570 cfs. Tr.
vol. 3, 814:19–815:6.
32
Br. at 37–41; tr. vol. 3, 891:18–895:23, 878:12–24, 882:11–22, 883:19–884:6. The Court is not
sure what to make of this concern because during his testimony Dr. Reely did not address any of
the specific alleged inconsistencies. As noted, Dr. Thompson concluded, based on the results of
the HEC-HMS modeling, that—given its limited capacity—the restoration channel could not
have had any impact on whether or not flooding occurred on the Ministry’s property. Dr.
Thompson therefore built his HEC-RAS model without the berm or restoration channel in it. It is
therefore unclear to the Court what significance to assign to the fact that, for example, his HEC-
RAS model of the 2010 flood did not show floodwater in the area where the restoration channel
meets the Patch of Heaven access road and where the 2010 flood blew out the culvert under the
road. See tr. vol. 3, 878:15–879:25, 895:5–23. For all the Court knows, it may be that it did not
show floodwater in that precise location because the model did not include the restoration
channel, which meant there was no culvert to be washed away.
A second criticism of Dr. Thompson’s model is that it showed water in the natural trace
during the October 2015 flood, but that aerial photographs taken shortly after peak flooding did
not. Id. 889:4–891:5. Dr. Thompson explained that because these photographs were taken after
peak flood flows had passed through, waters in the natural trace would have already discharged
out the Carson Slough. Id. 899:9–900:2.
In any event, and most importantly, even if Dr. Thompson’s models were less than
perfect, it is of little consequence because it was not the government’s burden to show causation.
It was the Ministry’s burden to prove that the project caused its property to flood and also that
the floods would not have occurred were it not for the berm and restoration channel. Dr. Reely’s
testimony did not persuade the Court on either point because it was not supported by quantifiable
data, did not address in any way possible alternative causes of the flooding, and presented an
inaccurate picture of the extent to which the rainfall that accompanied the 2010 and 2015 floods
was exceptional. Further, as noted, Dr. Reely never offered an opinion on whether, even absent
the berm and restoration channel, the property still would have flooded as a result of waters
coming from the eastern side of the upper watershed.
In short, the Ministry failed to prove that the restoration project caused the flooding of its
property. To the contrary, the weight of the evidence shows that the property would have flooded
even if the berm and restoration channel had never been built. The Ministry has therefore failed
to meet its burden to show causation.
CONCLUSION
On the basis of the foregoing, the Clerk is directed to enter judgment for the government.
IT IS SO ORDERED.
s/ Elaine D. Kaplan
ELAINE D. KAPLAN
Chief Judge
33