Corps seeks dismissal of breached levee lawsuit

CAPE GIRARDEAU, Mo. (AP) — The U.S. Army Corps of Engineers is seeking dismissal of a lawsuit brought on behalf of more than 140 southeast Missouri farmers over damage caused by last year’s intentional breach of the Birds Point levee at the height of spring flooding.

The Southeast Missourian (http://bit.ly/Hp8LIG) reports that government attorneys filed a motion to dismiss the suit in the U.S. Court of Federal Claims. Oral arguments in the suit are scheduled to begin April 10 in Washington.

The corps claims the lawsuit fails to state a legitimate claim for which relief can be granted. It asserts that because the floodway is rarely intentionally breached, it doesn’t constitute a government “taking” of the land.

Cape Girardeau attorney J. Michael Ponder, who is representing the farmers, called the motion nonsense.

“It doesn’t matter if it’s one time or five times, if you intentionally damage someone’s property — which is what the corps did here — it’s a taking,” Ponder said. “The case law bears that out.”

Mississippi River flooding in early May was threatening nearby Cairo, Ill. The corps used explosives to breach the Missouri levee to help lower the river level.

Cairo was spared but thousands of acres of rich Missouri farmland was damaged, along with about 90 homes. The corps estimated that the breach created more than $300 million in damage to private property, including $80 million in crop losses.

The lawsuit claims the breach constitutes “taking” by the corps under the Fifth Amendment of the Constitution, which protects against abuse of government authority in a legal procedure.

The Justice Department declined comment, citing the pending litigation.

But in a rebuttal to the suit, the corps said the land was not permanently flooded as a result of the floodway’s operation and claimed one flood does not constitute a taking. The motion to dismiss noted that the floodway would flood more frequently if the levees were not in place.

The lawsuit does not seek a specific amount for the farmers.

Among the plaintiffs is John Moreton of Cape Girardeau, who farms 1,600 acres in the floodway.

“We didn’t get any reimbursement for any damages to the land,” Moreton said. “This court case is trying to get some of those damages.”

Ponder said he hopes the matter goes before a trial judge by the end of the year.

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Information from: Southeast Missourian, http://www.semissourian.com

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