June 16, 2023
The U.S. Court of Appeals for the Federal Circuit ruled today that the United States bears responsibility for causing atypical recurrent flooding along the Missouri River that has injured farms and property in the Missouri River Basin since 2007. In its opinion, the Federal Circuit confirmed that the United States violated the Fifth Amendment prohibition on the taking of private property without just compensation by implementing the Missouri River Recovery Program (MRRP), a program described by the court as required by the Endangered Species Act but “antithetical” to the 1944 Flood Control Act.
Plaintiffs in the case, Ideker Farms, Inc., et al. v. United States of America, have been led by Am Law 100 firm Polsinelli and its shareholders Seth C. Wright and David K. Schultz, in partnership with co-counsel Cohen Milstein and its partner Benjamin D. Brown, and lead appellate counsel Donald B. Verrilli, Jr. from Munger, Tolles & Olson and Elaine J. Goldenberg and Benjamin J. Horwich from Munger, Tolles & Olson.
The mass action, on behalf of over 370 landowners from Kansas, Missouri, Nebraska, Iowa, and North and South Dakota, sought just compensation from the Federal Government for the actions of the U.S. Army Corps of Engineers, which was tasked with implementing the MRRP.
The Federal Circuit ruled in favor of the plaintiffs on the issues of causation and the date of accrual that the government had raised in its appeal. The Federal Circuit affirmed the trial court’s findings that the government actions caused the flooding to occur on the plaintiffs’ properties. Furthermore, the Federal Circuit ruled in favor of the plaintiffs on their cross-appeal relating to recoverability of crop damages and 2011 flooding. The case was remanded to the trial court for further proceedings. The plaintiffs have won at every stage of the proceedings from the trial court’s rulings on causation and damages, as well as now on appeal.
“Today’s decision is an important step in securing just compensation for our clients,” said lead appellate lawyer Don Verrilli. “We are very pleased that the Federal Circuit affirmed the merits of our Takings Clause arguments.”
Seth Wright, Shareholder at Polsinelli and lead trial counsel, said: “We are pleased with today’s action by the Federal Circuit that confirms the previous decisions by the U.S. Court of Federal Claims. It is time for the government to do the right thing and pay the just compensation owed to these landowners who have been waiting for over a decade to receive as a result of the government’s actions.”
Benjamin Brown of Cohen Milstein added, “Over fifty years ago, the Supreme Court stated, ‘The Takings Clause exists to bar the government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ Today’s decision again vindicates this critically important principle.”
Lead plaintiff Roger Ideker of Ideker Farms, Inc. in Holt County, Missouri, was pleased with the decision: “We continue to see the courts recognize the substantial losses we have encountered, and that the government should take responsibility. We are bolstered to continue the fight for justice.”
For additional information, see the case’s website at www.missouririverflooding.com.