Full Opinion

In the United States Court of Federal Claims No. 12-382 (Filed: 10 August 2026) *************************************** BILOXI MARSH LANDS * CORPORATION, et.al., * * Plaintiffs, * * v. * * THE UNITED STATES, * * Defendant. * * *************************************** Camilo K. Salas, III, Salas & Co., L.C., with whom were Michael G. Stag, Ashley M. Liuzza, and Matthew D. Rogenes, Stag Liuzza L.L.C., all of New Orleans, Louisiana, for plaintiffs. Erik Van de Stouwe, Trial Attorney, with whom were Young Kang, Trial Attorney, and Adam R. F. Gustafson, Principal Deputy Assistant Attorney General, Environment & Natural Resources Division, Department of Justice, all of Washinton, DC, for defendant. OPINION AND ORDER HOLTE, Judge. Plaintiffs Biloxi Marsh Lands Corporation (“Biloxi”), Lake Eugenie Land & Development, Inc. (“Lake Eugenie”), Borgnemouth Realty Co., Limited (“Borgnemouth”), The Livaudais Company, LLC (“Livaudais”), Terre Aux Boeufs Land Co., Inc. (“Terre Aux Boeufs”), and Vincent Marshlands, LLC (“Vincent Marshlands” or “Vincent”) (collectively, “plaintiffs”), allege the United States permanently took their properties for public use through inverse condemnation, without providing them just compensation, in violation of the United States Constitution, federal statutes, and certain servitudes granted by plaintiffs and assigned to the United States. Further, plaintiffs alleged the United States was liable for damage to plaintiffs’ estates under the contracts granting a servitude to construct an outlet canal on their properties. The government filed its Motion for Summary Judgment on 22 November 2024 arguing plaintiffs’ takings and contract claims are barred by this court’s six-year statute of limitations and lack merit regardless. After revisions, plaintiffs filed their Cross-Motion for Partial Summary Judgment on the issue of liability on 22 April 2025 addressing the same issues. The Court held oral argument on the Cross-Motions for Summary Judgment on 4 November 2025 in New Orleans, Louisiana. For the following reasons, the Court grants in part and denies in part the government’s Motion for Summary Judgment, and denies plaintiffs’ Cross-Motion for Partial Summary Judgment on the Issue of Liability. I. Factual Background The factual background of this case was previously outlined in the Court’s 19 January 2021 Opinion and Order: 1 A. The Mississippi River Gulf Outlet In the 1940s there were three primary water navigation routes in southeast Louisiana: the Inner Harbor Navigation Canal (“IHNC”), the Gulf Intracoastal Waterway (“GIWW”), and the Mississippi River. Pls.’ Corrected Mem. Submitted (1) in Opp. to the U.S.’ Mot. for Summary Judgment on the Issue of the Timeliness of Pls.’ Takings Claims; and (2) in Supp. of Pls.’ Cross-Mot. for Summary Judgment on the Same Issue, ECF No. 110, (“Pls.’ Mot. for Partial Summ. J.”), Ex. 39 at 3-40 (Mississippi River Gulf Outlet (MGRO) Ecosystem Restoration Plan, Final Environmental Impact Statement (June 2012)). In 1956, Congress authorized construction of a fourth route—the Mississippi River Gulf Outlet (“MRGO”). Pls.’ Mot. for Partial Summ. J., Ex. 2 at 1 (U.S. Army Corps of Engineers, MRGO Design Memorandum No. 1-B). The 76-mile-long, 36-foot-deep, 650-foot surface width, and 500-foot bottom width channel would soon connect the INHC and the 38-foot depth contour in the Gulf of Mexico. Id. at 1–3. The purpose of the MRGO “was to increase commerce by providing a direct connection between the port of New Orleans and the Gulf of Mexico.” St. Bernard Parish Gov. v. United States, 887 F.3d 1354, 1357 (Fed. Cir. 2018). In March of 1956, the Port of New Orleans (“the Port”) became the designated non-federal sponsor of the MRGO. Pls.’ Mot. for Partial Summ. J., Ex. 2 at 1 (U.S. Army Corps of Engineers, MRGO Design Memorandum No. 1-B). As such, Port Commissioners pursued acquisition of lands and obtained acts of assurance of local cooperation, which included the furnishing of all lands, easements, rights-of-way, and spoil disposal areas by the State of Louisiana. Id. at 6. In April of 1958, the Department of the Interior, in a draft preliminary report prepared for the Army Corps of Engineers (“USACE” or “the Corps”), predicted ecological damage would result from the construction and operation of the MRGO. See United States Mot. for Summary Judgment and Supporting Mem., ECF No. 99, (“Gov. Mot. Summ. J.”), Ex. 1, at 8 (citing U.S. Department of the Interior, An Interim Report on Fish and Wildlife Resources as Related to Mississippi River-Gulf 1 At oral argument, the Court invited the parties to note any disputes they may have with the facts as the Court described them in its 2021 Order. In a JSR following oral argument, the government noted two disputes with the Court’s recitation of the facts related to the 1958 Department of the Interior Draft Preliminary Report and the 1986 Water Resources Development Act (“WRDA”). See 22 January Joint Status Report at 1–5, ECF No. 293. Plaintiffs disagreed with the government’s disputes. See id. at 5–9. Neither the Draft Preliminary Report nor the 1986 WRDA impact the Court’s decision on the parties’ cross-motions for summary judgment in this opinion. While the Court does not address these disputes today, the parties remain free to raise these factual issues if they become relevant in a future proceeding. -2- Outlet Project, Louisiana and an Outline of Proposed Fish and Wildlife Studies (1958)). In the report, the Secretary of the Department of the Interior wrote the Secretary of the Army, noting “the project is of great concern to fish and wildlife conservationists” and “the project plans had not been investigated by fish and wildlife conservation agencies, as contemplated in Wildlife Coordination Act of August 14, 1946.” Id. (emphasis added in the government’s brief). Without further agency investigation, the Corps began construction of the outlet in 1958, dredging shallow bays, coastal marshes, and cypress swamps. Pls.’ Mot. for Partial Summ. J., Ex. 51 at 2 (U.S. Army Corps of Engineers, MRGO Deep Draft De-authorization Study: Executive Summary). Construction of the MRGO cut through Bayous Bienvenue, Dupre, La Loutre, and the Bayou La Loutre Ridge and resulted in the direct connection of Lake Borgne to the Gulf of Mexico through Breton Sound. Pls.’ Mot. for Partial Summ. J., Ex. 39 at 3-40 (Mississippi River Gulf Outlet (MGRO) Ecosystem Restoration Plan, Final Environmental Impact Statement (June 2012)). In 1965, Congress authorized construction of a hurricane protection levee along the south bank of the MRGO. Pub. L. No. 89-298, 79 Stat. 1073 (Oct. 27, 1965). The Corps completed construction of the MRGO in 1968. St. Bernard Parish Gov., 887 F.3d at 1357. From 1968 to 2009, the MRGO provided deep water vessels direct access from the Gulf of Mexico to the Port of New Orleans. Pls.’ Resp./Opp. to the U.S.’ Mot. to Dismiss the Compl. for Lack of Jurisdiction, ECF No. 14 (“Pls.’ Resp. to Mot. to Dismiss”), Ex. 2, pt. 1 at iv (U.S. Army Corps of Engineers, Integrated Final Report to Congress and Legislative Environmental Impact Statement for the MRGO Deep-Draft De-authorization Study (November 2007)); Pls.’ Mot. for Partial Summ. J., Ex. 51 at 2 (U.S. Army Corps of Engineers, MRGO Deep Draft De-authorization Study: Executive Summary). The MRGO extended approximately 70 miles from Breton Sound to eastern New Orleans, traversing wetlands and marshes in Plaquemines, St. Bernard, and eastern Orleans Parishes. Pls.’ Mot. for Partial Summ. J., Ex. 39 at 3-28 (Mississippi River Gulf Outlet (MGRO) Ecosystem Restoration Plan, Final Environmental Impact Statement (June 2012)). The MRGO provided a pathway for large ships to do business at the Port and created jobs reliant on the channel. Id. at 3-40–3-41. With those ships and jobs, however, came saltwater and damaging ecological change to the area surrounding the MRGO. Pls.’ Resp. to Mot. to Dismiss, Ex. 2, pt. 1, at iv (U.S. Army Corps of Engineers, Integrated Final Report to Congress and Legislative Environmental Impact Statement for the MRGO Deep-Draft De- authorization Study (November 2007)). B. Environmental Damage and Restoration: Reports and Legislation Construction of the MRGO converted and eliminated thousands of acres of wetlands. Id. at iv. The “[m]ost significant environmental effects occurred in the first 20 years after the MRGO [was] constructed.” Pls.’ Mot. for Partial Summ. J., -3- Ex. 56 at 43 (U.S. Army Corps of Engineers, MRGO Studies). In the first 20 years, construction destroyed 2,500 acres of wetlands and erosion along the banks of the newly constructed MRGO destroyed an additional 4,220 acres. Id. In October 1972, Coastal Environments, Inc., prepared an Environmental Baseline Study for the St. Bernard Parish Police Jury. See Gov. Mot. for Summ. J., Ex. 19 (St. Bernard Parish Policy Jury, Environmental Baseline Study (October 1972)). The purpose of the study was “to provide an environmental baseline of [St. Bernard] parish as it currently exists, taking into consideration cultural and natural factors that have modified the landscape . . . [and] to set management guidelines for the system and provide a basis upon which future modifications to the environment can be judged with a high degree of predictability concerning probable impact.” Id. at 2. In relation to the MRGO, the study stated: Of all navigation channels in coastal Louisiana, the [MRGO] has probably had the greatest environmental impact. . . . Construction of the channel destroyed 23,606 acres of marsh and shallow nursery areas—17,058 acres of spoil deposition and 6,548 acres by deepening. Secondary effects are equally serious. The channel has greatly altered the hydrology and water chemistry of adjacent estuarine areas. The large cross-section of the area provides an avenue of ingress and egress for runoff tidal waters. Changes in salinity are well-documented. Recording stations in the vicinity of the channel show significant changes after the canal was opened (about 1959) and completed (1962). . . . The thick sequence of poorly consolidated sediment through which the channel was excavated has created highly unstable bank conditions and massive slumping is common. . . . The result of this condition has been a continuous and costly program of maintenance dredging. Undesirable effects of this dredging include increased turbidity and the impact on fauna and flora of spoil disposal. Id. at 86–88, 93 (internal citation omitted). According to the 1972 study, “signs of deterioration [were] evident in the death of trees and opening up of water bodies” and the “change in water regime seems to be the main cause of deterioration.” Id. at 65–66. The study states, “[t]he MRGO has introduced higher salinities into the study area” and cites drastic changes in parts per thousand at Lake Borgne stations BDL and I-3 “from an average surface salinity of 3.0 ppt in 1959–61 to 10.4 ppt in 1962–64, an increase of over three times.” Id. at 66. In 1982, Coastal Environments, Inc., prepared an additional study. See Gov. Mot. for Summ. J., Ex. 18 (St. Bernard Parish Police Jury, St. Bernard Parish: A Study in Wetland Management (1982)). The study explains, “[o]ne of the major -4- causes of wetland deterioration in St. Bernard Parish appears to be closely related to the proliferation of deep navigation and drainage canals connecting the Gulf and interior wetlands.” Id. at 117. The study continues, “[s]ome of the more noticeable primary and secondary environmental impacts often attributable to canals [include] . . . saltwater intrusion, . . . erosion . . . and consequent loss of marshlands, . . . loss of stable, lower salinity estuarine nursery areas, [and] loss of biological diversity as nonsalt-tolerant [sic] species are squeezed out by higher salinities.” Id. In November 1984, the Corps prepared a study of the area. See Pls.’ Mot. for Partial Summ. J., Ex. 40 (U.S. Army Corps of Engineers, Louisiana Coastal Area, Louisiana—Land Loss and Marsh Creation—Initial Evaluation Report (November 1984)) (“1984 Initial Evaluation Study”). Therein, the Corps stated “[t]he marshes are disappearing at the alarming rate of 39.6 square miles per year due to compaction, subsidence, sea level rise, erosion, saltwater intrusion, and man’s activities. The land loss trend is expected to continue and, by year 2040, about 1,000,000 acres of wetlands could disappear beneath the gulf.” Id. at Syllabus. The study presented “the findings of the initial evaluation study of plans to reduce land loss and create marsh in the coastal area of Louisiana.” Id. at 1. The Corps noted “[a]s a result of the analysis of changing conditions, the needs and opportunities and concerns of Federal, state, and local interests, . . . objectives were established.” Id. at 62. These objectives included: “Create marsh to offset losses”; “[e]nhance marsh vegetative growth to reduce marsh losses and increase the nutrient and detritus supply for fish and wildlife production”; and “[r]educe subsidence, erosion, and saltwater intrusion to reduce marsh losses.” Id. In 1986 Congress enacted the Water Resources and Development Act (“WRDA”), which in part instructs the “Secretary of USACE to determine the need for modifications in the structure and operations of [the MRGO] for the purpose of improving the quality of the environment . . . .” Pls.’ Mot. for Partial Summ. J. at 25. In 1988, the Corps conducted a reconnaissance study of the MRGO’s bank erosion and erosion-related problems in Orleans and St. Bernard Parishes, Louisiana. Id. at 8–9. The purpose of the study was to: [D]efine the extent of erosion and erosion-related problems projected to occur in the study area; identify opportunities to implement potential solutions to the defined problems; appraise Federal interest in potential solutions[;] . . . determine, based on the appraisal, whether planning should proceed beyond the reconnaissance phase into more detailed feasibility phase considerations; estimate the time and cost required to complete feasibility phase studies if Federal interest is indicated; and assess the level of interest and support of non-Federal interests in the identified potential solutions to defined problems. Pls.’ Mot. for Partial Summ. J., Ex. 7 (Mississippi River-Gulf Outlet St. Bernard Parish, La.—Bank Erosion—Reconnaissance Report, February 1988) (“1988 -5- Reconnaissance Report”) at 2–3. The Corps warned of erosion if there were no remedial actions: The unleveed banks of the MRGO will continue to erode in the absence of remedial action. Currently, banks of the unleveed reached are retreating at rates from five to over 40 feet per year. The average rate of retreat of the north bank in the 41-mile land cut portion of the waterway is 15 ft per year. Failure to reduce bank erosion will result in a significant increase in the required maintenance dredging of the waterway in the future. Annual average maintenance dredging requirements are projected to increase six-fold within the next 15 years (by the year 2002). Id. at 30–31. In 1990, Congress passed the Water Resource Development Act of 1990, directing the Secretary of the Army to “include environmental protection as one of the primary missions of the Corps of Engineers in planning, designing, construction, operating, and maintaining water resources projects” and stating the Corps shall have “an interim goal of no overall net loss of the Nation’s remaining wetlands base, as defined by acreage and function, and a long-term goal to increase the quality and quantity of the Nation’s wetlands, as defined by acreage and function.” Water Resource Development Act of 1990, Pub. L. No. 101-640, tit. III, § 307(a), 104 Stat. 4604 (1990) (codified at 33 U.S.C. § 2317) (“1990 WRDA”). Additional legislation in 1990 included the Coastal Wetlands Planning, Protection and Restoration Act (the “Breaux Act”), which directed the Corps to establish a comprehensive plan to restore Louisiana wetlands and called for the development of annual lists of “priority projects” which would “provide for the long-term conservation of [Louisiana’s] wetlands . . . .” Pls.’ Mot. for Partial Summ. J., Ex. 42 at 3–4 (1994 MRGO Bank Erosion Reconnaissance Report). In 1993, a task force submitted a plan to restore and prevent further loss of Louisiana wetlands by “increas[ing] sediment and freshwater input into coastal estuaries” so as to “restart the natural processes of land building and maintenance.” Pls.’ Mot. for Partial Summ. J., Ex. 41 at 9 (1993 Louisiana Coastal Wetlands Restoration Plan). The task force behind the 1993 Louisiana Coastal Wetlands Restoration Plan developed a “comprehensive approach to restore and prevent the loss of coastal wetlands in Louisiana” by using hydrologic restoration, shoreline protection, marsh creation with dredged materials, and marsh management. Id. at 4, 9. The Breaux Act required the Corps to establish a comprehensive plan to restore Louisiana wetlands exclusively. Pls.’ Mot. for Partial Summ. J. at 39. The act authorized 143 projects to “create, protect, or restore over 120,000 acres of wetlands in coastal Louisiana” and dedicated $40 million annually to restoring wetlands in Louisiana and was still being implemented through 2001 or later. Id. -6- In 2000, the Environmental Protection Agency (“EPA”) suggested closure of the MRGO at the Bayou LaLoutre Ridge and offered a 10-year program to restore and manage wetland resources, including freshwater diversions into the Central Wetlands area. Pls.’ Mot. for Partial Summ. J., Ex. 45 at 2–3 (U.S. Army Corps of Engineers, Louisiana Coastal Area (LCA), Louisiana, Ecosystem Restoration Study (November 2004)). The report recognized the substantial land erosion caused by the MRGO and declared “[a]s long as the MRGO remains authorized to provide deep-draft navigation, ecosystem protection measures are critically needed to minimize further wetland loss and preserve the opportunities for future restoration.” Id. at 2. Recommendations by the report included construction of rock breakwaters along the shores of the MRGO, the beneficial use of dredged material for marsh creation, freshwater introduction, barrier island restoration, and “channel modification to develop a suite of measures to stabilize and maintain important estuarine components. Id. at 3. Four years later, the Corps’ “Louisiana Coastal Area, Ecosystem Restoration Study” disclosed the “rate of wetland loss in the area is accelerating” and “rapid action is required to protect the integrity of the southern Lake Borgne shoreline and to prevent continued erosion of the MRGO channel banks from ocean going vessel wakes.” Pls.’ Mot. for Partial Summ. J., Ex. 45 at 32 (U.S. Army Corps of Engineers, Louisiana Coastal Area (LCA), Louisiana, Ecosystem Restoration Study (November 2004)). In the same 2004 study, the Corps proposed building “38 miles of rock breakwaters to prevent the merger of the MRGO into Lake Borgne, facilitating wetland creation by using dedicated dredging and/or beneficial use of dredged materials behind the breakwaters, and freshwater introduction into the marsh through Mississippi River diversions.” Id. The Corps’ “Operations and Maintenance Bank Protection” program completed, scheduled, or proposed installation of foreshore protection, dredged material retention, and articulated mattress along over 90 percent of the length of the MRGO. Pls.’ Reply Br. Submitted (1) in Opp. to the U.S.’ Mot. for Summary Judgment on the Issue of the Timeliness of the Pls.’ Takings Claims and (2) in Supp. of Pls.’ Cross-Mot. for Summary Judgment on the Same Issue, ECF No. 135, (“Pls.’ Reply Br. Opp’n”), Ex. 57 at 1. C. The MRGO After Hurricane Katrina “Hurricane Katrina was ‘one of the most devastating hurricanes that has ever hit the United States, generating the largest storm surge elevations in the history of the United States.’” St. Bernard Parish Gov., 887 F.3d at 1358 (quoting In re Katrina Canal Breaches Consol. Litig., 647 F.Supp.2d 644, 678 (E.D. La. 2009)). Katrina caused severe shoaling in the MRGO, which in turn drastically changed the channel depth of the outlet. Pls.’ Mot. for Partial Summ. J., Ex. 51 at 3 (U.S. Army Corps of Engineers, MRGO Deep Draft De-authorization Study: Executive Summary). After the 2005 Hurricane season, the MRGO was not navigable as a deep draft waterway. Id. Dredging to restore the outlet to its originally authorized dimensions would have cost over $133 million. Id. To avoid -7- re-dredging, the Corps limited its maintenance of the outlet to provide for only one- way traffic. Id. at 7. The Corps thereafter stopped all maintenance dredging of the MRGO in 2006, thereby halting the beneficial use of dredged materials programs. Pls.’ Mot. for Partial Summ. J. at 3. In light of the damage to the MRGO and the high cost of fixing the damage, the Corps recommended total closure of the MRGO by erection of a rock dike across its entire width and the construction of other “rock dikes that protect wetlands along the MRGO.” Pls.’ Mot. for Partial Summ. J., Ex. 51 at 13 (U.S. Army Corps of Engineers, MRGO Deep Draft De-authorization Study: Executive Summary). In 2007, the Corps stated in a report to Congress “habitat shifts caused by saline waters brought in by the MRGO might have caused . . . 3,350 acres of fresh/intermediate marsh and 8,000 acres of cypress swamp [to be] converted to brackish marsh and 19,170 acres of brackish marsh and swamp [to] become saline marsh.” Pls.’ Mot. for Partial Summ. J., Ex. 52 at iv (Integrated Final Report to Congress and Legislative Environmental Impact Statement for the Mississippi River-Gulf Outlet Deep-Draft De-authorization Study). In addition, the Corps noted “[b]ank erosion along the MRGO has been estimated to occur at rates of between 27 and 38 feet per year” and “[b]etween 1964 and 1996, 5,324 acres of marsh have been lost adjacent to the MRGO channel . . . .” Id. The Corps announced a plan in 2007 to close the MRGO by 9 July 2009 because of the cost associated with repair and the potential for great ecological harm. Pls.’ Resp. to Mot. to Dismiss, Ex. 2, pt. 1 at 3 (U.S. Army Corps of Engineers, Integrated Final Report to Congress and Legislative Environmental Impact Statement for the MRGO Deep-Draft De-authorization Study (November 2007)). The Corps further published plans outlining ongoing, scheduled, and proposed restoration efforts to bolster the wetlands areas affected by the MRGO. Id. at 6–7. Congress again passed the WRDA in 2007 and authorized restoration projects paired with a federally funded study. The projects required a non-federal partner to agree to bear costs alongside the federal government, but no such partner came forward. Id. On 2 October 2008 the Corps announced it was developing a “comprehensive ecosystem restoration plan to restore the areas affected by the MRGO navigation channel.” Intent to Prepare a Draft Environmental Impact Statement for the Mississippi River-Gulf Outlet Ecosystem Restoration Feasibility Study, 73 Fed. Reg. 57,340, 57,341 (Sep. 23, 2008). The announcement included the following goals: (1) Physically modifying the MRGO channel and restoring areas affected by the channel; (2) restoring natural ecosystem features to reduce damage from storm surge; (3) measures preventing saltwater intrusion into the waterway; (4) measures protecting, restoring or increasing wetlands to prevent saltwater intrusion or storm surge; -8- (5) measures reducing risk of storm damage to communities by preventing or reducing wetland losses or restoring wetlands. Id. The Corps officially de-authorized the MRGO from the Gulf Intracoastal Waterway to the Gulf of Mexico in accordance with the 2007 WRDA on 5 June 2008. Amended Compl., ECF No. 37 (“Am. Compl.”), Ex. 2 at xvii–xviii. The outlet officially closed on 9 July 2009. Id. Congress and the President directed the Corps to develop a full range of flood control, coastal restoration, and hurricane protection measures exclusive of normal policy considerations for South Louisiana through the Coast 2050 Plan, the 2004 LCA Plan, the Breaux Act, and the 2007 WRDA. See Pls.’ List of Citations and Excerpts in Chronological Order Which Correspond to Each of the Agreed Subunits in a “Justifiable Uncertainty” Analysis, ECF No. 165 (“Pls.’ Supp. Paper”) at 8–9, 27–28. These directions included the creation of a long-term, comprehensive plan “for protecting, preserving, and restoring Coastal Louisiana ecosystem.” Pls.’ Mot. for Partial Summ. J., Ex. 49 (U.S. Army Corps of Engineers, Lake Borgne – Mississippi River Gulf Outlet Shoreline Protection (PO-32), St. Bernard Parish, Louisiana, Final Design Report (December 2004)). The Corps separated project goals into two categories in its 2012 Final Feasibility Report: “geomorphic” and “habitat specific.” Pls.’ Reply Br. Opp’n, Ex. 55 at S-12 and S-13 (U.S. Army Corps of Engineers, Mississippi River Gulf Outlet (MRGO) Ecosystem Restoration Plan: Final Feasibility Report (June 2012)) (“2012 Feasibility Report”); see also Pls.’ Mot. for Partial Summ. J., Ex. 39, at ES-1 (Mississippi River Gulf Outlet (MGRO) Ecosystem Restoration Plan, Final Environmental Impact Statement (June 2012)). In the category dedicated to habitat-specific goals, the Corps stated one goal is “to restore historic salinity conditions in the study area, restore native habitat acreages impacted by the MRGO and their ecosystem functions, and increase the year-round spatial coverage of critical landscape features that provide hurricane and storm surge damage risk reduction in the study area.” 2012 Feasibility Report at S-12 and S-13. D. Plaintiffs’ Land Ownership Property owners collectively lost thousands of acres of land since construction of the MRGO. Pls.’ Resp. to Mot. to Dismiss., Ex. 2, pt. 1 at iv (U.S. Army Corps of Engineers, Integrated Final Report to Congress and Legislative Environmental Impact Statement for the MRGO Deep-Draft De-authorization Study (November 2007)). Plaintiffs are six property owners with land in the area around the MRGO who allege the Corps, through the construction and maintenance of the MRGO, took their land “for public use without exercising the power of eminent domain and without providing plaintiffs just compensation in violation of the U.S. Constitution.” Am. Compl. at 1. -9- The United States obtained servitudes from landowners, including plaintiffs, which permitted use of land within 1,500 feet from the channel’s original centerline. Id. at 4. Specifically, plaintiff Biloxi granted to the United States “a right of entry in and to any and all lands [it] owned . . . in that portion of the Parish of St. Bernard, State of Louisiana, lying south and east of Bayou La Loutre, for the purpose of such dredging and spoil disposal operations.” Id. at 5–6. At about the same time—the exact date being unknown at this time due to the destruction of records at the St. Bernard Parish Court House caused by Hurricane Katrina in 2005—plaintiffs Lake Eugenie, Borgnemouth, Livaudais, and Vincent Marshland granted to the Port similar 1,500-foot-wide servitudes, on land owned by these companies, for the construction and maintenance of the MRGO. Id. at 6; see also Gov. Mot. for Summ. J., Exs. 1–4 (four plaintiffs’ complaints, later consolidated as the present case). Each plaintiff also granted to the Port a right of entry and temporary spoil disposal servitudes, which the Port assigned to the United States through the Corps. Id. Plaintiffs own separate pieces of land throughout the affected region. See, e.g., Am. Compl. at 3–7. Plaintiffs Biloxi and Lake Eugenie own property in the Biloxi Marsh and have their principal places of business in Metairie, Louisiana. Am. Compl. at 6. Plaintiff Terre Aux Boeufs also owns property in Biloxi Marsh complex, plus a separate plot south of the MRGO. Gov. Mot. for Summ. J., Ex. 3 at 4 (Compl., Terre Aux Boeufs Land Co., Inc., 15-710, ECF No. 1 (July 8, 2015). Terre Aux Boeufs’s business operates out of New Orleans, Louisiana. Id. at 3. The property Borgnemouth owns consists of around 7,000 acres and includes Proctor’s Point, the coastline peninsula landmark cutting into Lake Borgne. Gov. Mot. for Summ. J., Ex. 2 (Compl., The Borgnemouth Realty Co., Limited and The Livaudais Company, L.L.C. v. U.S. 14-3, ECF No. 1 (January 2, 2014). Borgnemouth’s two tracts of land span from Proctor’s Point to the MRGO and southwest of the MRGO. Id. at 9. The land Livaudais owns consists of two tracts “located just north of and adjacent to” the land Borgnemouth owns. Id. at 5. Livaudais also owns an undivided one-sixth interest in the area known as the Golden Triangle. Id. Borgnemouth and Livaudais operate out of Meraux, Louisiana. Id. at 3. Vincent Marshlands is based in Harahan, Louisiana. Gov. Mot. for Summ. J., Ex. 4. Vincent Marshlands owns an undivided one-half interest in the Chalmette Meadows Property the MRGO touches. Id. Trinity Church, a Louisiana nonprofit corporation (“Trinity Church”); the Rector and Visitors of the University of Virginia, a Virginia public corporation (“University of Virginia”); and the Administrators of Tulane Educational Fund, a Louisiana nonprofit corporation (“Tulane University”) formed Vincent Marshlands in October 2008 to manage their respective one-third shares of an undivided one-half interest in the Chalmette Meadows Property. Id. Hugh E. Vincent and Frank B. Hayne, Sr. acquired the Chalmette Meadows Property in December 1916. Id. Upon his death, Hugh E. Vincent left his undivided interest to these three entities. Id. Biloxi Marsh Lands Corp. v. United States, 152 Fed. Cl. 254, 260–68 (2021) (Holte, J.). - 10 - II. Procedural History The procedural history of this case is as much a quagmire as the marshlands at issue. On 15 June 2012, plaintiffs Biloxi and Lake Eugenie filed a complaint alleging the government’s permanent taking of plaintiffs’ property without just compensation in violation of the Takings Clause of the Fifth Amendment to the United States Constitution. See Compl. ¶ 1, ECF No. 1. The government filed a motion to dismiss on 31 August 2012. See Gov’t’s Mot. to Dismiss, ECF No. 9. On 24 June 2013, the then-assigned judge denied the government’s Motion to Dismiss, stating “[p]laintiffs are not clearly without our jurisdiction” as “whether the statute of limitations has run depends on questions of predictability and mitigation” not well addressed at the motion to dismiss stage. Order Denying Mot. to Dismiss at 3, ECF No. 18. Plaintiffs filed an amended complaint on 29 October 2013. See Am. Compl., ECF No. 37. This case was consolidated with Borgnemouth Realty Co. v. United States, No. 14-3, on 22 July 2015 and further consolidated with Terre Aux Boeufs Land Co., Inc. v. United States, No. 15-710—which was already consolidated with Vincent Marshlands, LLC et al. v. United States, No. 15-711—on 30 January 2018. See Order Granting Mot. to Consolidate, ECF No. 59; Order Consolidating Related Matters, ECF No. 91; Order Consolidating Cases, Vincent Marshlands, No. 15-711, ECF No. 14. Both parties then filed motions for summary judgment. See Gov’t’s Motion for Summ. J., ECF No. 99; Pls.’ Mot. for Partial Summ. J., ECF No. 105. On 29 July 2019, this case was reassigned to the undersigned Judge. See Order Reassigning Case, ECF No. 136. The Court held oral argument on the motions for summary judgment in Washington, DC, on 29 June 2020. See Order Granting Mot. to Am. Schedule, ECF No. 156. On 19 January 2021, the Court granted-in-part and denied-in-part the government’s motion for summary judgment and denied plaintiffs’ motion for summary judgment. See Biloxi Marsh Lands Corp. v. United States, 152 Fed. Cl. 254 (2021). In that Order, the Court analyzed the timeliness of plaintiffs’ takings claims according to seven categories of land. See id. at 310–11. As the Court explained, “[w]hen a taking occurs through gradual processes, two applicable doctrines assist in determining when the statute of limitations begins to run: stabilization and justifiable uncertainty.” Id. at 269 (citations omitted). The Court explained, “the ultimate question in a justifiable uncertainty analysis is whether “the landowners [did or] did not know when or if their land would be permanently destroyed.” Id. at 312 (emphasis and alteration in original) (citation and internal quotations omitted). The Court found “[f]or categories One, Two, Three, Four, Six, and Seven of land, plaintiffs have been able to establish justifiable uncertainty may” apply, id., but “landowners in Category Five could have only been justifiably uncertain until as late as 1996,” so the statute of limitations only could have run “as late as 2002,” id. at 300 (citation omitted). Accordingly, the Court granted the government’s motion for summary judgment as to category five because plaintiff’s 2012 complaint could not have come within the jurisdictional statute of limitations. See Biloxi, 152 Fed. Cl. at 310. As for the remaining categories, the Court held it “cannot definitively say whether or not the government’s actions created justifiable uncertainty as to the permanency of the alleged government taking.” Id. at 312 (citation omitted). On 17 February 2021, plaintiff filed a motion for partial reconsideration of the Court’s 19 January Order, asking the Court “hold that the objective standard must be applied throughout the - 11 - entire analysis of the timeliness of the plaintiffs’ claims and actual knowledge of the Corp’s activities around the MRGO is not required.” See Pls.’ Mot. for Partial Reconsideration at 14, ECF No. 169. The Court denied the motion on 27 October 2021, holding “[f]or purposes of statute of limitations accrual, determining justifiable uncertainty is a two-part inquiry: (1) whether a landowner’s subjective knowledge of the government’s promises or actions caused the landowner to be uncertain about the taking’s permanence; and (2) whether government promises or actions caused the landowner an objectively reasonable uncertainty of the taking’s permanence.” See Biloxi Marsh Lands Corp. v. United States, 156 Fed. Cl. 301, 319 (2021) (emphasis in original). After the Court’s 27 October 2021 Order denying reconsideration, the parties resumed discovery related to plaintiffs’ claims. See 3 Nov. 2021 Order, ECF No. 200. On 20 September 2023, after additional discovery, the parties proposed a schedule to complete discovery and submit briefing on summary judgment again regarding: (1) the timeliness of plaintiffs’ takings claims “left unresolved” in the Court’s 19 January 2021 Order; and (2) legal issues related to plaintiffs’ contract claims. See 20 Sept. 2023 Joint Status Report (“JSR”) at 1–2. The Court adopted the parties’ proposed briefing schedule. See 16 Oct. 2023 Order, ECF No. 222. The government filed its currently pending Motion for Summary Judgment on 22 November 2024. See Gov’t’s Mot. for Summ. J. (“Gov’t’s MSJ”), ECF No. 244. Plaintiffs initially filed a response and cross-motion for partial summary judgment on 30 December 2024. See Pls. Mot for Partial Summ. J., ECF No. 253; Pls.’ Response to Gov’t’s MSJ., ECF No. 252. Plaintiffs later filed the currently pending and combined Revised Response to the Government’s Motion for Summary Judgment and Cross-Motion for Partial Summary Judgment on the issue of liability on 22 April 2025. See Pls.’ Rev. Resp. to the Gov’t’s MSJ and Mot. for Partial Summ. J on the Issue of Liability (“Pls.’ Rev. MSJ”), ECF No. 274. The government filed its response and reply on 16 May 2025. See Gov’t’s Reply in Support of Mot. for Summ. J. and Opp. to Pls.’ Rev. MSJ (“Gov’t’s Reply”), ECF No. 276. Plaintiffs filed their reply on 13 June 2025. See Pls.’ Reply in Support of Cross-Mot. for Partial Summ. J. (“Pls.’ Reply”), ECF No. 279. The Court held oral argument on the cross-motions for summary judgment in New Orleans, Louisiana on 4 November 2025. See 23 Sept. Order Setting Oral Argument, ECF No. 280. Shortly after oral argument, the Court ordered the parties to submit a JSR to address any factual disputes the parties had with the Court’s recitation of facts in its 2021 Order and to supply additional authority related to plaintiffs’ privity of contract with the government. See 5 Nov. 2025 Order, ECF No. 284. After three extensions and one correction, the parties filed the JSR on 22 January 2026. See 22 Jan. 2026 JSR, ECF No. 293. III. Parties’ Arguments A. The Government’s Argument Plaintiffs’ Fifth Amendment Claims are Untimely The government first argues all plaintiffs’ Fifth Amendment claims are untimely because the Court held in 2021 all their claims stabilized in 1988, thus triggering accrual of the 6-year statute of limitations. See Gov’t’s MSJ at 15–16, 29, 37, 50–51, 57, 60–63, 67, 68. The - 12 - government asserts plaintiffs’ claims are untimely by decades unless plaintiffs can demonstrate the doctrine of “justifiable uncertainty” applies to delay accrual of the statute of limitations. See id. According to the government, “justifiable uncertainty arises only if the Corps actually undertakes some mitigation activity to redress the government-caused damage or commits itself to undertake such mitigation activity.” Id. at 16 (citation omitted). The government further contends “[m]ere consideration of potential projects to achieve some environmental goal cannot support a claim of justifiable uncertainty because considering possible projects does not commit the United States to any mitigation activities.” Id. (cleaned up). The government argues plaintiffs “lacked subjective knowledge of government remediation actions or promises to