March 13, 2018

The federal government’s operation of dams and other structures along the Missouri River has caused persistent and often major flooding that has swamped farms across four Midwestern states for the past decade, a federal claims court judge ruled Tuesday.

U.S. Court of Federal Claims Judge Nancy Firestone ruled that a shift in the Army Corps of Engineers’ management of the river to benefit endangered species led to floods in five of the eight years between 2007 and 2014. That decision could put the federal government on the hook for more than $300 million in damages for "taking" property under the Fifth Amendment, according to lawyers for roughly 400 farmers who say they were harmed by floods.

The sweeping 259-page ruling is the latest in the decades-long fight over how to manage the Missouri River, which is lined by valuable agricultural land, serves as a barge thoroughfare and provides habitats to endangered birds and fish. The decision stands to be one of the largest takings claims ever reached against the Army Corps of Engineers for flooding, and could set important precedent about who bears the cost when the operations of water systems that were built long before modern environmental laws are altered to accommodate the needs of imperiled species.

“This is the court saying that, to the extent that you undo [flood protection measures], that where you have reason to know that is going to cause flooding, you can’t just stick all of those costs onto the people who are flooding. Those costs have to be shared by the taxpayers,” said Benjamin Brown, a partner at Cohen Milstein who represented property owners in the case.

The ruling was for the first phase of the case, and will be followed by a second phase in which the judge will assess damages and determine the compensation to 44 individual properties that are expected to be representative of the hundreds of others. That phase is slated to begin in October.

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