[00:00:01] Speaker 01: Mr. Healy, please proceed. [00:00:26] Speaker 04: May it please the court [00:00:27] Speaker 04: Yankton County is requesting this court declares a matter of law that the court of claims erred in applying the incorrect legal test to the United States motion to dismiss, and that Yankton County's claim was timely filed pursuant to the stabilization doctrine and remain in this case for a trial on the merits. [00:00:44] Speaker 04: The court's mistake was to apply the inherently unknowable test of the accrual suspension rule when it should have applied the stabilization doctrine, which allows a claimant [00:00:55] Speaker 04: in a Fifth Amendment takings case where the taking arises out of a gradual physical process, such as erosion, to delay filing its claim until the situation stabilizes. [00:01:08] Speaker 04: The situation stabilizes when it becomes clear that a gradual physical process put in motion by the government has affected a taking. [00:01:19] Speaker 03: Can I ask you something? [00:01:20] Speaker 03: I understand your position on this. [00:01:24] Speaker 03: You know, I do think that the decision below could have more clearly articulated what test was being applied when. [00:01:33] Speaker 03: But I'm curious about what you think of the language on page A12, where it talks, the court says, in the instant case, the necessary reports, data, and photographs that collectively indicated the permanence of erosion were all available to plaintiffs no later than March 28, 2011. [00:01:55] Speaker 03: And in the context of this paragraph, the court is discussing the Banks case, which was applying the stabilization doctrine. [00:02:02] Speaker 03: So I'm wondering why this paragraph is not addressing the stabilization doctrine. [00:02:09] Speaker 04: Yes, Your Honor. [00:02:10] Speaker 04: The court does mention the stabilization doctrine within the opinion. [00:02:14] Speaker 04: However, the ultimate analysis that the court applies to the photographs, the data, and the reports that are available [00:02:24] Speaker 04: is whether that information made the claim inherently unknowable. [00:02:29] Speaker 03: I see where it refers to that test and addresses that in other places. [00:02:33] Speaker 03: But this paragraph, to me, perhaps reads as if it's also addressing the stabilization doctrine. [00:02:41] Speaker 03: Do you think that this paragraph is addressing the accrual suspension? [00:02:48] Speaker 04: I do. [00:02:52] Speaker 04: If I'll refer the court back to appendix page 11 in the last paragraph on that page, the Court of Claims writes, in essence, plaintiff's argument that the Black & Veatch report was the first time plaintiff learned of the Gavin's Point dam's potential impact on the bridges invokes the inherently unknowable prong of the accrual suspension rule. [00:03:16] Speaker 04: And that's the standard that the court held Yankton County to throughout its opinion, despite [00:03:23] Speaker 04: the discussion of the stabilization doctrine, the court fails to address the other considerations that the court should have considered in determining whether the county's claim was timely under the stabilization doctrine. [00:03:39] Speaker 01: I guess one argument would be that you're right. [00:03:45] Speaker 01: There are some [00:03:46] Speaker 01: there's a little bit of confusion and almost melding together of the stabilization doctrine and the accrual suspension rule, in her opinion. [00:03:54] Speaker 01: One page 11, not just there, but up above earlier in the first paragraph as well. [00:03:59] Speaker 01: But when you get to appendix page 12, and in particular the portion that Judge Stoll pointed to in the instant case, the necessary reports, et cetera, all say the permanence of the aversion were available to plaintiff no longer than this date. [00:04:15] Speaker 01: Even if she misstated the law earlier, her fact finding, it seems to me, is not clearly erroneous. [00:04:21] Speaker 01: And with that fact finding, no conclusion can be reached but that it had stabilized by that point. [00:04:28] Speaker 01: So it seems to me, even though the law may have gotten melded together a little bit on the prior page, this is a fact finding which, under the correct articulation of the law, absolutely lands you in the same place that you're in right now. [00:04:41] Speaker 01: And so how is that fact finding clearly erroneous? [00:04:44] Speaker 01: If you can't convince me of that, you can't win this case. [00:04:47] Speaker 04: Because, Your Honor, that fact-finding, it does or it could prove that the claim was knowable under the accrual suspension. [00:04:58] Speaker 01: Well, you can't get my vote. [00:05:00] Speaker 01: Maybe you'd still win the case, but you wouldn't have my vote. [00:05:02] Speaker 01: So I just wanted to clarify. [00:05:05] Speaker 01: So OK, what were you saying? [00:05:06] Speaker 04: Thank you, Your Honor. [00:05:08] Speaker 04: I was saying, while that fact-finding by the court [00:05:11] Speaker 04: may support a conclusion under the accrual suspension rule that the claim was knowable. [00:05:16] Speaker 04: The court does not ultimately find that it should have become clear to Yankton County that a permanent taking has occurred. [00:05:24] Speaker 01: No, it's a permanence of the erosion. [00:05:26] Speaker 01: That's the fact finding. [00:05:27] Speaker 01: That's what you're missing. [00:05:29] Speaker 01: That sentence says, in the instant case, all this evidence that she articulates indicates that the permanence of the erosion. [00:05:36] Speaker 01: That's not a sentence about accrual. [00:05:40] Speaker 01: That's a sentence about stabilization. [00:05:43] Speaker 04: I'm sorry, Your Honor. [00:05:45] Speaker 04: Which sentence is the court referring to? [00:05:47] Speaker 01: Page 12, the second to last paragraph, the in the instant case sentence. [00:06:02] Speaker 01: That sentence is about nothing other than stabilization, because it's about permanence. [00:06:06] Speaker 01: When did the plaintiff become [00:06:08] Speaker 01: could come to know about the permanence of the erosion. [00:06:11] Speaker 04: And I think that the court found there that those documents were available. [00:06:16] Speaker 04: The documents were available for a claimant to make a conclusion that this taking had occurred prior to the tolling of the statute of limitations. [00:06:29] Speaker 04: But that's not the proper test that should be applied. [00:06:32] Speaker 00: You keep saying when the taking occurred. [00:06:34] Speaker 00: Isn't it when the taking became permanent? [00:06:38] Speaker 04: When a permanent physical taking became clear to the plaintiffs, when it became clear to Yankton County that a permanent physical taking occurred. [00:06:45] Speaker 03: Is it an objective standard? [00:06:47] Speaker 03: Or does it have to be when it's clear to Yankton County or whether it's clear to an objective party in their position? [00:06:56] Speaker 04: When it would become clear to an objective party in the county's position, yes. [00:07:01] Speaker 01: And the county, just to be clear, was aware of problems because they did the riprap [00:07:05] Speaker 01: six or seven separate times, starting in 94 all the way through 2004. [00:07:10] Speaker 01: They kept going after that bridge, trying to mitigate the damage, trying to protect it, whatever. [00:07:14] Speaker 01: So they knew there were some serious problems with the bridge. [00:07:16] Speaker 01: And then she finds that all of these reports, data, and photographs that show the permanence of the erosion for plaintiffs to understand that permanent taking had occurred were all available to be found. [00:07:29] Speaker 01: So you have a plaintiff who knows he's got damage, and he's taking constant efforts to mitigate. [00:07:34] Speaker 01: And you've got all this data available that she says should have told the objective person at that point in time that this erosion was permanent damage. [00:07:44] Speaker 04: I disagree with your last statement, Your Honor, that the judge found that this should have established the Yankton County that a permanent taking had occurred. [00:07:55] Speaker 04: What the Court of Claims found was that it could have. [00:07:58] Speaker 04: It could have. [00:07:58] Speaker 04: And that's a far different standard than should it have become clear [00:08:03] Speaker 04: to a reasonably prudent county commission that a permanent physical taking had occurred. [00:08:07] Speaker 04: This court has instructed in bowling that if we establish that we didn't know, the county did not know. [00:08:13] Speaker 03: Where is this should have, could have thing? [00:08:15] Speaker 03: I don't see that. [00:08:16] Speaker 03: In looking at the language that we're all focusing on in page 812, in the first full paragraph, or that's actually the second full paragraph at the end, it says, [00:08:26] Speaker 03: In the instant case, the necessary port's data photographs that it collectively indicated the permanence of erosion were all available to plaintiff. [00:08:34] Speaker 03: Plaintiff, therefore, had access on or before that date to all the information necessary to determine the permanent nature of the alleged taking of its property. [00:08:46] Speaker 03: Where's this should have, could have concept? [00:08:50] Speaker 04: Availability of the documents themselves, all of the information necessary [00:08:56] Speaker 04: is not what's required. [00:09:00] Speaker 03: What's required? [00:09:02] Speaker 04: A finding of the court that it had become clear that a permanent physical taking had occurred, or that it could have become clear, or that it should have. [00:09:11] Speaker 00: Well, the court made that finding. [00:09:13] Speaker 00: The court made the finding that these documents were publicly available, and that some of them went back as far as 1995, 96, and that your client [00:09:25] Speaker 00: Because of that, your client is held to the standard of having access to those documents. [00:09:30] Speaker 04: Under the accrual suspension rule, that is correct, Your Honor. [00:09:34] Speaker 04: Under the stabilization doctrine, that is not correct. [00:09:37] Speaker 04: The standard is when it becomes clear to a reasonable extent. [00:09:40] Speaker 00: At some point, even under the stabilization doctrine, at some point, stabilization occurs. [00:09:45] Speaker 00: Correct, Your Honor. [00:09:47] Speaker 00: And that's when the landowner knew that the taking was permanent. [00:09:55] Speaker 00: And the court here made a finding that there was documents out there publicly available to your client that showed that this taking was permanent. [00:10:09] Speaker 00: I mean, the facts read it. [00:10:11] Speaker 00: You see the pilings. [00:10:12] Speaker 00: There's riprap being built. [00:10:14] Speaker 00: The land gets bigger and bigger. [00:10:16] Speaker 00: And Farmer Jones' barn now is three feet from the river. [00:10:20] Speaker 00: You know, at some point. [00:10:22] Speaker 00: And then there's knowledge also as far as 1995, other reports where the court says, the Army, our court says that the James River is going to be affected, degradation to the James River is going to be affected because of the spillway off of the dam. [00:10:44] Speaker 04: Okay, I'm going to try to break those apart a little bit and get to the argument that I want to present to this court, which is [00:10:52] Speaker 04: Once it's determined that the county was unaware that a permanent physical taking had occurred. [00:10:59] Speaker 04: We've alleged that. [00:11:00] Speaker 04: It's in the record through an affidavit. [00:11:03] Speaker 04: The test under the stabilization doctrine, then, is when should it be, should have it become clear to Yankton County. [00:11:10] Speaker 04: And in making that determination, this court has instructed in bowling that there are a number of considerations, there are a number of things, factors that the court should take into consideration. [00:11:21] Speaker 04: that would establish why did the county not file its suit sooner? [00:11:24] Speaker 04: Why did it not investigate sooner? [00:11:26] Speaker 04: There's a report in 1989. [00:11:28] Speaker 04: There's erosion in 1994. [00:11:31] Speaker 04: If the county was justified in its ignorance of the existence of the claim, then the statute of limitations does not begin. [00:11:39] Speaker 03: That's the accrual suspension doctrine where you're talking about the county was justified [00:11:47] Speaker 03: Or are you just saying they're justified in not knowing no objective party in the county's position would have known of the permanence of the taking? [00:11:55] Speaker 04: Correct. [00:11:55] Speaker 03: It applies in the stabilization. [00:11:58] Speaker 03: I assume you're going to say because they thought the riprap was a permanent fix and some things like that. [00:12:03] Speaker 03: So why not? [00:12:04] Speaker 04: Right. [00:12:05] Speaker 04: And a reasonably prudent county looking at this situation. [00:12:09] Speaker 04: Here's Yankton County. [00:12:10] Speaker 04: Its bridge is being eroded. [00:12:13] Speaker 04: to the appendix, page 189, it's a portion of the report from Dr. Ruben Heine, and it shows a correlation between severe flooding on the James River and the need to install riprap. [00:12:27] Speaker 04: Every time there was a severe flood, shortly thereafter, there would be a need to install riprap. [00:12:33] Speaker 04: The county's looking at this problem, and it's reasonable for the county to say, okay, once there's a flood, the floodwaters are coming through, they're washing out, [00:12:43] Speaker 04: the area that supports our pilings and washing out the banks. [00:12:46] Speaker 04: What Dr. Heine also explains on page 187 is that in periods of high flood on the James, which flows into the Missouri, the Corps Operations Manual instructed them to reduce flows on the Missouri River, increase flows on the James, which would increase that gradient from the James River into the Missouri and cause even more water to rush through and to erode [00:13:11] Speaker 04: the banks and the bridge pilings. [00:13:15] Speaker 04: It was reasonable for the county to believe that the problems that their bridges were facing were the result of prolonged and epic flooding on the James River and not the Missouri River. [00:13:26] Speaker 00: But there was data, the court made a finding, there's data out there that counters that, that there's another reason. [00:13:33] Speaker 00: And it was well known that the spillway over the Gavin's Dam was degrading [00:13:40] Speaker 00: the Missouri, which in fact leads to the degradation of the James River. [00:13:46] Speaker 04: With all due respect, Your Honor, the existence of a report from 1989 should be reviewed in the context of what effect that would have on a reasonably prudent county commissioner. [00:13:56] Speaker 04: The fact that the Missouri River was degrading because of the dam, and that was migrating up the James through a process called channel incision, what effect would [00:14:08] Speaker 04: That may be clear. [00:14:09] Speaker 04: All of that science may be clear to a reasonably prudent geomorphologist or an engineer, but not to Yankton County, not to a rural county who does not employ a full-time engineer. [00:14:21] Speaker 04: They're faced with a problem that they believe is the result of epic flooding on the James River and they think they can fix it. [00:14:29] Speaker 04: And they try to do that for a number of years and they consult with engineers. [00:14:33] Speaker 03: And so you think this case is more like Banks or Applegate? [00:14:38] Speaker 03: I think, where there was some intervening activity in those cases by the government that made it so it wasn't clear when stabilization occurred or prolonged or delayed stabilization. [00:14:53] Speaker 04: Absolutely, Your Honor. [00:14:54] Speaker 04: But I believe that the intervening actions by the government are only one factor for the court to consider in determining whether the county was justifiable or not in not knowing that its claim had accrued. [00:15:07] Speaker 04: The court should also consider the factors of bowling, the irregular process of erosion, the difficulty in discerning where the government's easement begins and ends, and uncertainties in the terrain. [00:15:20] Speaker 04: Here you've got a county that owns a bridge 20 river miles away from Gavin's Point Dam on an entirely separate river. [00:15:28] Speaker 04: And they're having epic flooding. [00:15:30] Speaker 03: And they're... Let me interrupt you for one more minute, which is just, what about... [00:15:36] Speaker 03: I understand your position that government action shouldn't be the only thing that would make it so the stabilization was uncertain. [00:15:48] Speaker 03: Do you have any cases to that effect to support that? [00:15:51] Speaker 03: Besides, banks and Applegate are good cases for that position. [00:15:55] Speaker 03: However, those do involve government action. [00:15:58] Speaker 03: Do you know of any others that involve action other than government action? [00:16:01] Speaker 03: Because the government obviously, in this case, the government's taking the position [00:16:05] Speaker 03: This doctrine would apply to you because it's not government action. [00:16:08] Speaker 03: So I was just wondering if you had any cases in response to that position. [00:16:13] Speaker 04: I don't, Your Honor. [00:16:13] Speaker 04: I think those cases make clear that the nature of the Corps of Engineers Act is one factor to be considered. [00:16:21] Speaker 04: And it shouldn't be viewed, as the Court of Claims does, as just positive because we're not trying to determine whether the Corps' actions made it inherently unknowable for the county to know that its claim existed, right? [00:16:34] Speaker 04: We're not arguing that they concealed their act in some way, only that the Corps behavior here contributed to the uncertainty of the county. [00:16:42] Speaker 04: And the county's uncertainty is justifiable. [00:16:46] Speaker 04: The county was prudent in the way it consulted with engineers. [00:16:49] Speaker 01: Mr. Healy, you've used all your time, all your rebuttal time, and another minute and a half. [00:16:52] Speaker 01: So let's hear from the government, and then I will restore a little bit of your rebuttal time. [00:17:01] Speaker 02: My name is Joan Pepin on behalf of the United States. [00:17:04] Speaker 02: With me at council table is Carter Thurman. [00:17:07] Speaker 02: I'd like to first address this allegation that the Court of Federal Claims made an error in using the term inherently unknowable, as if that were not applicable to this case. [00:17:18] Speaker 02: And I'm reading to you now from the plaintiff's brief below from pages 15 to 16. [00:17:23] Speaker 02: And they argued. [00:17:24] Speaker 02: What page? [00:17:25] Speaker 02: Pages 15 to 16 of their brief in the Court of Federal Claims. [00:17:28] Speaker 02: This is docket number 10 below. [00:17:30] Speaker 02: Their argument was, the impact of Gavin's Point Dam on the plaintiff's bridges was inherently unknowable because of the distance between the dam and the bridges and some other reasons. [00:17:41] Speaker 02: The Court of Federal Claims was rightly responding to the arguments that the parties had made before it. [00:17:45] Speaker 02: And they had argued that it was inherently unknowable. [00:17:47] Speaker 02: And the Court of Federal Claims rightly found that it was not because, as the Court of Federal Claims rightly held, [00:17:56] Speaker 02: the plaintiff cannot delay the accrual of its claim by delaying its investigation. [00:18:01] Speaker 02: In this case, the plaintiffs clearly had knowledge in 1994 that they had a serious problem on their hands. [00:18:05] Speaker 02: They had received a report from their engineering firm saying we're having bed degradation and bank erosion at the Fleags Bridge and it was serious enough that they took action. [00:18:15] Speaker 00: Did that knowledge at that time amount to a notice of a permanent taking? [00:18:20] Speaker 02: Yes, because what a permanent taking means [00:18:23] Speaker 02: is, as the court held in Bowling, is a substantial encroachment on the property. [00:18:28] Speaker 02: Under the stabilization doctrine, which we all agree applies here. [00:18:31] Speaker 02: This isn't a case where there's any disagreement about that. [00:18:34] Speaker 02: The stabilization doctrine holds that a plaintiff's claim occurs when the property is substantially encroached, or sometimes where a substantial inroads has been used, and the extent of the damages is reasonably foreseeable. [00:18:46] Speaker 03: Can I ask you something? [00:18:47] Speaker 03: Do you have to know that it was the government that is encroaching? [00:18:53] Speaker 02: I don't think that's an element of encroachment, but it would be an element of knowledge of your claim. [00:18:58] Speaker 02: However, when you know that you've got a problem on your hands. [00:19:01] Speaker 03: So to make sure I understand what you're saying, you're saying that there's two different tests, a curl suspension and stabilization. [00:19:07] Speaker 03: And you're saying that knowledge that it's the government might not matter for stabilization? [00:19:12] Speaker 02: It doesn't. [00:19:13] Speaker 02: No, it's not the definition of substantial encroachment. [00:19:16] Speaker 02: But a claim would be the stabilization doctrine. [00:19:19] Speaker 02: This is another thing. [00:19:20] Speaker 02: Curling is really the key case for this case. [00:19:23] Speaker 02: And this court held in Bowling that the stabilization doctrine is not an exception to the rules of claim accrual. [00:19:30] Speaker 02: It's an application of them. [00:19:31] Speaker 02: And those rules are the ordinary rule that your claim accrues when all the events which fix the government's liability have occurred, and the other ordinary rule that it accrues when you know or should have known. [00:19:43] Speaker 02: And I'll divert for a moment to address the distinction that Mr. Healy was trying to draw between could have known or should have known [00:19:50] Speaker 02: There is no such distinction. [00:19:52] Speaker 02: This court has held that in Holmes and in Ingram. [00:19:55] Speaker 02: And we address that at footnote four in our brief. [00:19:58] Speaker 02: This court has held that the new or should have known standard is the same as the inherently unknowable standard. [00:20:05] Speaker 02: That they're interchangeable, but that inherently unknowable is more precise. [00:20:09] Speaker 02: Unknowable, if you could have known, it's not unknowable. [00:20:12] Speaker 02: So even if that wording is in here somewhere, it's not an error. [00:20:16] Speaker 02: It's the correct standard. [00:20:17] Speaker 02: But anyway. [00:20:18] Speaker 03: What do you make of the argument here that the court below confused the two doctrines and should have been applying the stabilization doctrine, but actually was just discussing the accrual suspension doctrine? [00:20:31] Speaker 02: I have two responses to that. [00:20:33] Speaker 02: The court was properly answering both arguments that were made by the plaintiffs. [00:20:37] Speaker 02: As I read to you from their brief, they made the accrual suspension. [00:20:41] Speaker 03: Where do you think is the best place where you think the court [00:20:44] Speaker 03: um, addresses stabilization, not just in repeating the test, but actually it's kind of threw out. [00:20:51] Speaker 02: Um, the court did rely more. [00:20:53] Speaker 02: There's, there's multiple formulations of that stabilization doctrine. [00:20:56] Speaker 03: One has been when it's a point to us exactly where you're relying on. [00:21:01] Speaker 03: Can you point to us exactly the language you're relying on? [00:21:03] Speaker 03: Cause you said it's throughout. [00:21:05] Speaker 02: I just want to know where, uh, well, let's see. [00:21:08] Speaker 02: Um, it, [00:21:11] Speaker 02: It explains what the stabilization doctrine is on the top of page appendix 11, or the court's decision page 10. [00:21:19] Speaker 02: And then the language you pointed to, I believe it was you pointed to earlier, on appendix page 12, about in this case, all the information was available to the plaintiff. [00:21:38] Speaker 02: It used the formulation when it was apparent that a permanent taking has occurred. [00:21:42] Speaker 02: That's one formulation of the accrual suspension doctrine. [00:21:45] Speaker 02: The other one is the substantial encroachment. [00:21:48] Speaker 02: They're also both used in the same cases. [00:21:52] Speaker 02: They're not alternatives. [00:21:54] Speaker 02: In cases involving intermittent flooding, the permanence is an issue because one flood or two floods isn't necessarily a taking. [00:22:01] Speaker 02: It might be a tort. [00:22:04] Speaker 02: But when the intermittent flooding [00:22:06] Speaker 02: becomes inevitably recurring or permanent, then that's when it crosses the threshold to become a taking. [00:22:12] Speaker 02: And that's where the language of permanence enters into this standard. [00:22:15] Speaker 02: In this case, there's never really been any question that the erosion was not temporary. [00:22:20] Speaker 02: The land wasn't going to come back by itself. [00:22:23] Speaker 02: When they were putting that rip rock, it was to armor the bed and prevent further erosion from occurring. [00:22:27] Speaker 02: So permanence isn't really an actual question in this case. [00:22:30] Speaker 03: But they thought they were fixing the problem. [00:22:32] Speaker 03: Well, they thought they were halting the problem. [00:22:34] Speaker 03: I'm sorry, I couldn't hear you because I was talking at the same time. [00:22:39] Speaker 02: Could you say that again, what you were saying? [00:22:41] Speaker 02: I think they thought they were halting the problem. [00:22:43] Speaker 02: Yes, not restoring it to what it was before, but stopping it from going any further. [00:22:46] Speaker 02: They thought that they were stopping it, but they were not. [00:22:50] Speaker 02: Well, apparently not. [00:22:51] Speaker 03: Why isn't this case like Banks? [00:22:52] Speaker 03: Because you've got the Isaac Walter dam and the removal of that. [00:22:59] Speaker 03: combined with the thought that it was prolonged and epic flooding that was causing the problem, combined with the uncertain nature of the rip wraps effect on the problem that could have made stabilization not occur until later. [00:23:14] Speaker 02: The key reason this is not like banks and Applegate is because those cases explicitly relied on the fact that the government had conducted mitigation that destroyed the foreseeability of future damages. [00:23:24] Speaker 03: Why didn't all these other things that I mentioned destroy the foreseeability? [00:23:28] Speaker 03: Assuming for a minute they did, just assuming for they did, is it your position that that doesn't matter at all because it's only when the government takes action? [00:23:36] Speaker 02: For mitigation, it's only when the government takes action. [00:23:40] Speaker 03: A party taking... Just looking at stabilization, why couldn't other things, other factors impact the timing of stabilization even if they had nothing, those other things had nothing to do with the government's actions? [00:23:55] Speaker 02: Because it wouldn't have stopped the taking from occurring. [00:23:58] Speaker 02: If they take action to mitigate their damages, that is relevant to the damages. [00:24:02] Speaker 02: And this court held that in Bowling, which was an erosion stabilization doctrine case. [00:24:06] Speaker 02: The plaintiff's own efforts to mitigate the damages don't delay or prevent accrual of their claim. [00:24:11] Speaker 02: They just go to the amount of damages. [00:24:13] Speaker 02: And the Supreme Court said that in Dickinson as well. [00:24:16] Speaker 02: So their own efforts at mitigation. [00:24:19] Speaker 02: And you asked if there was any case to support the idea of the plaintiffs. [00:24:23] Speaker 02: efforts at mitigation. [00:24:24] Speaker 03: Not just their efforts at mitigation, their view that it was prolonged and epic flooding. [00:24:30] Speaker 03: I mean, there's a number of factors here. [00:24:32] Speaker 03: Everybody agrees that as of 1989, the erosion hadn't moved up to the bridges that issue in this case because of the Isaac Walter Dam, right? [00:24:43] Speaker 02: The Isaac Walter Dam is a very interesting factor here. [00:24:45] Speaker 02: I mean, I think if this case were to go to trial, there'd be a question of intervening causation for the removal of that dam. [00:24:52] Speaker 02: I can accept that they may not have subjectively have known, but what they could have done and should have done after they knew of problems in 1994 and had to take more action in 95 and had to take more action in 98 in 2002 and on and on, they could have launched an inquiry. [00:25:09] Speaker 02: They could have done exactly what they ultimately did do in 2011 and hired an engineering firm and said, why do we have to keep doing this? [00:25:16] Speaker 02: Why aren't our efforts to fix this problem working? [00:25:19] Speaker 02: They chose to delay making the investigation until 17 years after their first injury. [00:25:24] Speaker 02: And that, as a court of federal claims really held, the plaintiff cannot delay the accrual of its claim by delaying its investigation when it had access to all of the necessary facts giving rise to its claim. [00:25:35] Speaker 02: If plaintiff was able to so delay, the six-year statute of limitations set forth in 28 USC 2501 would be superfluous. [00:25:43] Speaker 02: This court has also made a similar holding in the Menominee Tribe case. [00:25:47] Speaker 02: that a plaintiff's choice not to launch an investigation into the cause of their injuries does not suspend accrual of their claim if the facts were knowable. [00:25:56] Speaker 02: And they were knowable. [00:25:57] Speaker 02: All they had to do was what they ultimately did do, just maybe after the second or third time they had to install riprap instead of after 17 years. [00:26:11] Speaker 02: Does the court have any other questions? [00:26:15] Speaker 02: We ask you to affirm the Court of Federal Claims' finding that this case occurred before April 6, 2011. [00:26:23] Speaker 01: Mr. Healy, I'll restore two minutes of your rebuttal time. [00:26:27] Speaker 04: Thank you, Your Honor. [00:26:32] Speaker 04: Just briefly, the stabilization doctrine and the accrual suspension rule are two separate and distinct doctrines. [00:26:44] Speaker 04: To the court below, the county's brief was clear that our primary argument was that the claimant not accrued pursuant to the stabilization doctrine. [00:26:52] Speaker 04: We made a secondary argument that the accrual suspension rule applied. [00:26:57] Speaker 04: The key difference between the two doctrines is that under accrual suspension, the claim accrues if it's possible that the county knew. [00:27:07] Speaker 04: And under the stabilization doctrine, it has to have become clear. [00:27:10] Speaker 04: So you can have accrual under one, but not the other. [00:27:14] Speaker 04: And that's the case that the Court of Claims just decided in Wealthy versus the United States, where the information was available, but it had not become clear that a permanent taking had occurred. [00:27:29] Speaker 04: That's the situation here. [00:27:32] Speaker 04: Certainly there was enough information out there that if the county had launched that inquiry, they could have determined that this claim existed. [00:27:41] Speaker 04: But they didn't do that. [00:27:44] Speaker 04: And I implore this court to find that it was reasonable for them not to do that, given all the circumstances surrounding this case. [00:27:53] Speaker 04: And at a minimum, the court of claim should have considered those factors from bowling and made a finding. [00:28:00] Speaker 04: Was the county justifiably uncertain? [00:28:03] Speaker 04: And if a review of the decision, the court did not make that finding. [00:28:11] Speaker 04: One thing on the Isaac Walton Dam, it did create significant uncertainty. [00:28:15] Speaker 04: Appendix page 225, this is the 2011 Black and Beach report. [00:28:20] Speaker 04: So this is what the county received in November of 2011. [00:28:22] Speaker 04: An engineering firm the county hired wrote, it is possible that degradation of the Missouri River is also affecting the James River. [00:28:30] Speaker 04: However, a low head dam, Isaac Walton Dam, exists about 780 feet downstream from the railroad bridge. [00:28:38] Speaker 03: This is the 1989. [00:28:41] Speaker 04: No, your honor. [00:28:41] Speaker 04: This is the 2011 report that Black and Veatch gave the Yankton County on November 17th. [00:28:48] Speaker 04: This dam currently provides some level of protection against migrating degradation. [00:28:52] Speaker 04: So as late as 2011, engineers, professional engineers are telling the county, well, it's possible that it's a degradation on the Missouri, but there's this Isaac Walton dam. [00:29:04] Speaker 03: But that Isaac Walton dam was removed in 1989 or early 90s. [00:29:10] Speaker 03: What page is that in the appendix? [00:29:14] Speaker 04: This is page 225 of the appendix. [00:29:24] Speaker 04: With that, I would just ask that the court reverse the court of claims. [00:29:29] Speaker 04: This is the kind of case that the stabilization doctrine and its lenient application of accrual suspension of accrual principles was developed for. [00:29:40] Speaker 04: Thank you. [00:29:41] Speaker 01: I thank both counsel for their arguments. [00:29:43] Speaker 01: The case is taken under submission.