Whether the government's implementation of flood control and environmental protection measures constitutes a compensable taking under the Fifth Amendment when such actions result in recurring flooding of private property

No question identified. : 2 infra, la-27a) is reported at 71 F.4th 964. The court’s order denying rehearing (App., infra, 28a-30a) is unreported. 1. a. This case presents Fifth Amendment takings claims based on flooding on hundreds of properties in the Missouri River's historical floodplains. In 1944, Congress authorized the Army Corps of Engineers to build and operate the Missouri River Mainstem Reservoir System (System), comprising six large dams and reservoirs in the River’s upper basin and downstream levees. Flood Control Act of 1944, Pub. L. No. 78-534, 58 Stat. 887 (33 U.S.C. 701 et seq.). Congress required the Corps to operate the System to promote multiple purposes including flood control, hydropower, navigation, water supply, water quality, recreation, and fish and wildlife preservation. 58 Stat. 887-891 (33 U.S.C. 701-1). In 1945, Congress authorized the Corps to establish the Bank Stabilization and Navigation Project (BSNP) to create a navigation channel downstream of the reservoirs. River and Harbor Act of 1945, Pub. L. No. 7914, 59 Stat. 10, 19. Under the BSNP, the Corps altered the River’s water flow by constructing a navigation channel and building dikes, levees, and revetments. As a result, sediment deposited on the riverbank, accreting tillable farmland. App., infra, 8a-9a. The System became fully operational in 1967 and the Corps operates it under a Master Water Control Manual, which was first published in 1960, with multiple revisions since then. Through 3 the various revisions, the Manual has emphasized that the System’s operations will change based on priorities established in law, national and regional policies, future floods and droughts, and other factors. See, e.g., C.A. App. 50433, 50503, 50532, 40096, 40206, 40256, 41029, 41128, 41181. The Manual has also long incorporated guidance about fish and wildlife. See, e.g., C.A. App. 50490-50491, 40216, 40218, 41140, 41142. After Congress enacted the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., the Fish and Wildlife Service (Service) listed the interior least tern and pallid sturgeon as endangered and the piping plover as a threatened species due in part to the System’s effects. 50 C.F.R. 17.11. The Endangered Species Act requires agencies (including the Corps) to consult with the Service to ensure that their actions are “not likely to jeopardize the continued existence” of any species listed as endangered or threatened or adversely modify such species’ critical habitat. 16 U.S.C. 1536(a) (2). During formal consultation, the Service evaluates proposed agency action in a biological opinion. 16 U.S.C. 1536(b). The Service produced several opinions concluding that the Corps needed to make seasonal releases affecting the flow of the River to create more habitat for the listed species. App., infra, 9a. In 2002, several private parties and States sued the Corps, objecting to its management of the River, including its failure to implement the changes called for in the Service’s biological opin 4 ions. App., infra, 9a. The district court ordered the Corps to revise its Master Manual, which resulted in the 2004 Master Manual. In re Operation of Mo. River Sys. Litig., 305 F. Supp. 2d 1096, 1099 (D. Minn. 2005). The 2004 Master Manual revisions resulted in changes to the System, including “creat[ing] more shallow water habitats through modifications to the channel and dikes and reopen[ing] chutes that the Corps previously closed.” App., infra, 10. The Eighth Circuit upheld the revised Manual against challenges by multiple States and environmental groups. In re Operation of Mo. River Sys. Litig., 421 F.3d 618, 627-628, 638 (8th Cir. 2005), cert. denied, 547 U.S. 1097 (2006). b. In 2014, approximately 372 individuals and entities who own and operate farms adjacent to the River in six States sued the United States in the Court of Federal Claims, alleging that the 2004 changes to the System caused severe flooding between 2007 and 2014 and resulted in physical