In the News

“Claims Court Awards Landowners $7M for Mo. River Flooding,” Law360

December 15, 2020

The U.S. Court of Federal Claims has said the federal government owes over $7 million to a trio of landowners as compensation for the serial flooding of their private properties near the Missouri River due to a conservation initiative undertaken by the U.S. Army Corps of Engineers.

Judge Nancy B. Firestone ruled Monday that the Corps increased the severity of flooding caused by the Missouri River when it shifted its priorities in the early 2000s from flood control to environmental restoration. Consequently, the government owes three bellwether plaintiffs over $7 million in collective damages for the devaluation of their property, the court held.

The ruling means hundreds of individuals who own property affected by the flooding in six different states are likely entitled to just compensation for the decreases in their property value due to the new flood patterns created by the Corps’ execution of the Missouri River Recovery Program.

“In sum, the court finds that the increased frequency, severity, and duration of flooding post-MRRP demonstrates that the MRRP changed the character of the representative tracts of land,” the court said. “It cannot be the case that land that experiences a new and ongoing pattern of increased flooding does not undergo a change in character.”

. . .

The lawsuit was filed in 2014 by over 400 farmers, landowners and business owners ranging from North Dakota to Kansas who alleged that flooding in 2007, 2008, 2010, 2011, 2013 and 2014 constituted a “taking without just compensation” in violation of the Fifth Amendment. The litigation was divided into two phases — liability and just compensation.

The first phase of the litigation was decided in March 2018 when Judge Firestone found that some of the 44 property owners selected as bellwether plaintiffs had proven the Corps’ liability. In that decision, the court found that the Corps, in an attempt to balance its flood control and Endangered Species Act responsibilities, released water from reservoirs “during periods of high river flows with the knowledge that flooding was taking place or likely to soon occur.”

The Corps made other changes after 2004 to reengineer the river and reestablish more natural environments to facilitate species recovery. That caused effects like riverbank destabilization, which also led to flooding, the judge said in the 2018 opinion.

Judge Firestone ultimately found that 28 of the 44 landowners had cleared the three hurdles necessary to prove a takings claim: causation, foreseeability and severity. The remaining 16 failed to prove causation, and their claims were dismissed. The judge additionally found that flooding in 2011 could not be tied to the Corps’ actions and dismissed claims for that year.

Monday’s ruling, the second phase of the litigation, was responsible for determining the extent of the landowners’ losses and whether the government has a viable defense against their claims. The court additionally held that interest shall be calculated on the damages using Moody’s calculation that provides for a 1.7% rate of return, which will be compounded annually, according to the opinion.

The plaintiffs are represented by R. Dan Boulware and Edwin H. Smith of Polsinelli PC and Benjamin D. Brown of Cohen Milstein Sellers & Toll PLLC.

The complete article can be viewed here.