Overview
Cohen Milstein represents more than 370 farmers, landowners, and business owners from six states in the Missouri River Basin in a mass action against the United States of America.
Plaintiffs claim that the federal government (acting through the U.S. Army Corps of Engineers) violated the Takings Clause of the Fifth Amendment, which bars the federal government from taking private property without just compensation. The Plaintiffs claim that the Corps of Engineers, departing from longstanding flood control policies, fundamentally changed its management of the Missouri River in 2004 in an effort to comply with the Endangered Species Act and to protect at-risk or endangered fish and wildlife. And, dating back to 2007, the Corps of Engineers effectively damaged and destroyed the Plaintiffs’ farmland and property in the Missouri River Basin.
Procedural Background & Rulings
This mass action has proceeded through two bellwether phases and is currently in its third phase. The Phase III trial is expected to occur in 2026.
Phase I
Phase I focused on liability and consisted of a trial before the U.S. Court of Federal Claims, which began in Kansas City, MO before moving to Washington, D.C. It involved 44 “bellwether” Plaintiff properties and more than 90 testifying witnesses over the course of the 63-day trial. In total, over 100 depositions were taken and in excess of 20 million documents were produced throughout Phase I.
On March 13, 2018, the trial court ruled that the U.S. Army Corps of Engineers’ actions foreseeably caused recurrent flooding in 2007, 2008, 2010, 2013, and 2014. The trial court, however, found that the government’s actions did not cause the flooding that occurred in 2011.
Phase II
Phase II focused on the remaining liability issues and determining just compensation. To assess these issues, the trial court selected three Phase II representative Plaintiffs out of the bellwether Plaintiffs who had prevailed in Phase I. In its December 14, 2020 trial opinion, the trial court determined that the government’s actions and the resulting flooding constituted a taking of a permanent flowage easement on the three Phase II representative Plaintiff properties, which entitled the Plaintiffs to just compensation. The trial court collectively awarded the three Phase II representative Plaintiffs approximately $7,000,000 for property value diminution, $1,000,000 for repairing a levee, and prejudgment interest. The trial court found that lost crop damages were not recoverable.
Appeal
The Government appealed, and Plaintiffs cross-appealed, rulings from both trial phases. On June 16, 2023, the U.S. Court of Appeals for the Federal Circuit affirmed the trial court’s determination that the U.S. Army Corps of Engineers effectuated a taking of a permanent flowage easement over the farmlands and personal property of the three Phase II representative Plaintiffs by causing intermittent but recurring flooding. In addition to affirming the lower court’s judgment awarding compensation for the diminished value of the land, the appellate court also reversed and remanded the issues of compensation for lost crops and causation of the 2011 flooding for further factfinding by the trial court. This was a significant victory involving the government’s misuse of power in violation of the Fifth Amendment’s Takings Clause. On November 29, 2023, the Federal Circuit denied the United States’ petition for an en banc rehearing of its June 16, 2023 decision. In early 2025, the Phase II representative Plaintiffs and the United States reached a tentative settlement to resolve the remaining issues remanded by the Federal Circuit.
Phase III
Phase III will resolve any remaining takings liability issues and determine just compensation for an additional five representative Plaintiffs out of the bellwether Plaintiffs who prevailed in Phase I. The parties are currently conducting expert discovery. The Phase III trial is expected to occur in 2026.
Case Background
The mass action lawsuit was originally filed on March 5, 2014 on behalf of 372 plaintiffs comprised of farmers, landowners and business owners, and alleged that the U.S. Army Corps of Engineers’ actions have violated the takings clause of the Fifth Amendment that bars the Government from taking private property without just compensation. An amended complaint was filed on October 15, 2014.
According to the complaint, U.S. Army Corps of Engineers’ departure from longstanding flood control policies damaged and destroyed farmland and property in the Missouri River Basin, dating back to 2007. The Defendants fundamentally changed Missouri River management policies in 2004, in order to comply with the Endangered Species Act and to protect at-risk or endangered fish and wildlife. These policies were a departure from the longstanding status quo, and the Corps allegedly made public statements acknowledging that the new design would result in frequent overflow of the River and devaluation of the Plaintiffs’ private property. The Corps explained to farmers living along the River that, in order to restore fish and wildlife, “everyone would have to do their part,” and that “[y]our part is to move out of the floodplain and don’t live there.” The lawsuit claims the Corps took the Plaintiffs’ property for a public purpose without any just compensation, violating their Fifth Amendment rights.
The plaintiffs in this litigation are farmers, individuals, and companies who own land, operate farms and other businesses, or reside in the Basin. The plaintiffs are represented by Benjamin D. Brown of Cohen Milstein Sellers & Toll PLLC and by Polsinelli PC.
The case name is: Ideker Farms, Inc., et al. v. United States of America, Case No. 1:14-cv-00183-LJB, U.S. Court of Federal Claims.