Mo. River Farmers Sue Federal Govt.

Source: By Todd Neeley, DTN Staff Reporterʥ Posted: Sunday, January 3, 2021

Lawsuit Seeks Flood Compensation for Farmers Along 274-Mile Stretch of Mo. River

 

A new group of farmers has filed a class-action lawsuit against the U.S. Army Corps of Engineers seeking damages for repeated flooding and damages to farm ground in the Missouri River basin. (DTN file photo by Amanda Ottmann)
A new group of farmers has filed a class-action lawsuit against the U.S. Army Corps of Engineers seeking damages for repeated flooding and damages to farm ground in the Missouri River basin. (DTN file photo by Amanda Ottmann)

OMAHA (DTN) — A new class-action lawsuit seeks compensation for farmers and other property owners who suffered property losses from repeated floods on both sides along a 240-mile stretch of the Missouri River.

The lawsuit is seeking compensation for a class of farmers from Burt County in northeast Nebraska to Leavenworth County, Kansas, after a federal judge in December ruled the U.S. Army Corp of Engineers took land from three farmers without just compensation.

The lawsuit filed in the U.S. Court of Federal Claims piggybacks on the successful case involving three bellwether cases that include St. Joseph, Missouri, farmer Roger Ideker and two other farmers.

“Accordingly, the benefits of proceeding through the class mechanism, including providing hundreds of injured persons and entities with an efficient method of obtaining redress for claims, substantially outweigh any difficulties that may arise in management of this class action,” the new lawsuit said.

Earlier in December the court ruled the Corps of Engineers violated the Fifth Amendment to the Constitution by not compensating the three farmers after repeated flooding in the basin took farmland out of production. That case remains subject to appeal.

The court, however, ruled against compensating farmers for crop losses.

The new lawsuit on behalf of more than 60 plaintiff landowners in Kansas, Missouri, Nebraska and Iowa, seeks just compensation from the U.S. government for violating the Fifth Amendment. In addition, the lawsuit seeks to create an entire class of landowners with similar claims. In all, the class could include hundreds of farmers and other landowners.

On Dec. 14 the court ruled the repeated flooding led to the taking of permanent flowage easements along the river.

The court also ruled Corps’ changes to the management of the basin led to repeated flooding from 2007 to 2014.

“Many along the river have been hurt and deserve to be compensated,” lead counsel for the plaintiffs R. Dan Boulware said in a statement.

In her ruling earlier in December, Judge Nancy Firestone ruled changes made to basin management by the Corps of Engineers in 2004 was to blame.

Repeated flooding has led to significant damage to farms, including lost infrastructure, damaged farm ground and lost crops and future land usage.

Through it all the Corps of Engineers has maintained it has been following its master manual.

Boulware told DTN in an interview he hopes the ruling will lead to changes in how the Corps of Engineers manages the basin.

Though the December ruling granted compensation to three bellwether cases, Boulware said there are hundreds of farmers in the basin who suffered damages. Bellwether cases are those determined to be representative of all other cases.

Firestone said in her ruling federal law doesn’t permit the awarding of “consequential” damages, including lost crops.

The court concluded the representative tracts were reduced in value by 30% from changes made by the Corps in the management plan.

Applying that to the 2014 values, the court ruled there was about $7 million to be paid on about 3,000 acres — most of which was bottomland ranging from $6,000 to $8,000 per acre.

The amount will be collectible only on lands where a taking occurred.

Though an expert testified at trial that Ideker could receive anywhere from about $23.9 million to $26.2 million in compensation for damage on his 1,493-acre tract of land, Boulb three cases.

In 2018, the court ruled the Corps was responsible for recurring floods that severely damaged Ideker’s farm — for several years post-2004, except 2011 — and on March 11, 2019, the court moved to the compensation portion of the case. Ideker’s farm was again underwater in 2019 as a result of the heavy flooding in the basin.

Ideker and hundreds of other basin farmers have been working to return large chunks of land buried in sand to production while holding out for a successful court case.

The court ruled changes made to the flood manual by the Corps of Engineers led to unprecedented releases from Gavins Point Dam in South Dakota following heavy spring rains and snowmelt in Montana in 2011. The Corps released large volumes of water from that dam in 2011, and all the levees along Ideker’s farm were destroyed.

The 2011 flood caused an estimated $2 billion in damage in several states. The Corps had to make unprecedented water releases from northern dams, flooding farms and communities in the lower basin and bringing into question whether the Corps handled the situation correctly. Many landowners downstream blamed the Corps’ water release for exacerbating the flood. A task force later found the Corps did all it could to manage the water.

Firestone ruled in 2018 that in five of the six years in question dating back to 2007, the Corps of Engineers violated the Fifth Amendment by not compensating farmers for flood-damaged land. She disallowed flood claims from 2011.

Firestone ruled in 2018 the Corps deprioritized flood control in 2004. In 2004, the Corps instituted the Missouri River Recovery Program to accelerate changes to the river to enhance wildlife habitats.

Todd Neeley can be reached at todd.neeley@dtn.com

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