November 30, 2023
The full Federal Circuit declined Wednesday to reconsider a panel’s June decision affirming a more than $7 million award for farmers along the Missouri River who incurred serial flooding of their land, rejecting the federal government’s warning the takings ruling could yield “untold billions” in future liability.
The Army Corps of Engineers previously filed its petition for rehearing en banc in early September, saying such review is warranted because the panel’s unanimous decision “adopts a new principle of Fifth Amendment takings law that effectively deems the plaintiff landowners to have acquired a property interest in the operations of government civil works.”
The Army Corps maintained the decision could “potentially yield a billion dollars of liability in this case and untold billions for the federal government and state governments in future cases.” Despite the government’s relatively rare en banc rehearing request, the Federal Circuit voted against reviewing the prior decision in a brief three-page order.
According to court documents, the dispute between the Army Corps and the farmers dates back to at least 2004, when the government reengineered the Missouri River and reestablished more natural environments to facilitate species recovery. However, the decisions caused riverbank destabilization and flooding.
Ten years later, more than 400 farmers, landowners and business owners from North Dakota to Kansas sued the Army Corps, alleging floods over the last decade constituted a “taking without just compensation” in violation of the Fifth Amendment.
The U.S. Court of Federal Claims determined in December 2020 that the government owed the lawsuit’s three bellwether plaintiffs — Robert Adkins & Sons Partnership in Iowa, Ideker Farms Inc. in northwest Missouri and Buffalo Hollow Farms Inc. in Kansas — more than $7 million in collective damages for the devaluation of their property.
The Army Corps appealed the decision shortly after.
However, a unanimous Federal Circuit panel thoroughly rejected the government’s argument that the federal claims court lacked jurisdiction and that the plaintiffs misapplied causation and relative benefits to their Fifth Amendment claim. Instead, the panel said it is undisputed that the Army Corps has “permanently burdened plaintiffs’ land with a right to access their land with flood waters.”
The panel further concluded the federal claims court erred in ruling that the bellwether plaintiffs weren’t eligible for damages for crop losses and property damages incurred over the years and that the government was not responsible for flood damages caused in 2011, prompting the Army Corps to file a petition for rehearing en banc on Sept. 11.
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The plaintiffs are represented by Seth C. Wright of Polsinelli PC, Benjamin D. Brown of Cohen Milstein Sellers & Toll PLLC, and Donald B. Verrilli Jr., Elaine J. Goldenberg, Benjamin J. Horwich and Evan Mann of Munger Tolles & Olson LLP.