Attorney plans to sue over Missouri River flooding
Originally published March 5, 2013 at 1:06 p.m., updated March 5, 2013 at 11:48 p.m.
KANSAS CITY, Mo. (AP) — Landowners inundated by Missouri River flooding are preparing to sue the U.S. government, saying a recent Supreme Court ruling opens the door for them to receive damages, an attorney said Tuesday.
“We believe that the way the river system was managed culminating in the 2011 flood resulted in some of these farmers and landowners sustaining a tremendous amount of damage,” St. Joseph attorney Ed Murphy said, adding that there had been flooding in previous years and the “monster in 2011” was “foreseeable.”
The summer of 2011 was when the U.S. Army Corps of Engineers began releasing massive amounts of water from upstream reservoirs that had been filled with melting snow and heavy rains. The onslaught lasted for more than 100 days, busting levees, carving gouges, dumping sand and scattering tree limbs and other debris on farmers’ fields.
Murphy said he has been meeting with farm and levee groups, and the plaintiffs could come from Missouri, Kansas, Nebraska, Iowa and possibly even South Dakota. He said he plans to file the suit soon in the U.S. Court of Federal Claims in Washington.
The corps has repeatedly defended its actions, but spokesman David Kolarik said Tuesday that the agency wasn’t able to comment on pending litigation.
Murphy said his case, which the St. Joseph News-Press first reported about, will be helped by a U.S. Supreme Court ruling in December that the federal government is not automatically exempt from paying for damage caused by temporary flooding from its dams.
The court sided with the Arkansas Game and Fish Commission in its appeal of a lower court ruling that said the federal government did not have to pay for damage to thousands of trees after the corps released more water than usual from its dam on the Black River. The release of additional water benefited farmers, but the commission said its hardwood forest suffered significant damage.
The commission said the damage amounted to the government taking its property, for which compensation would be owed under the Constitution.
The Court of Federal Claims agreed and ordered the government to pay $5.6 million for destroyed and damaged trees. But the U.S Court of Appeals for the Federal Circuit in Washington said damage resulting from temporary flooding, as opposed to permanent or inevitable flooding, cannot be compensated under the Constitution’s Takings Clause.
Justice Ruth Bader Ginsburg disagreed with the appeals court, writing for the court that “government-induced flooding of limited duration, but severe impact, can amount to a taking of property warranting just compensation.” But Ginsburg also cautioned that the court was not deciding that the government has to pay for all flooding caused by government action, or even necessarily in the Arkansas case.
Murphy said he had been monitoring the Arkansas case closely after receiving repeated calls from frustrated Missouri River farmers. In 2011, the swollen river flooded about 207,000 acres of farmland in Missouri alone, and the lost crops cost the state’s farmers nearly $110 million after crop insurance and other disaster payments, according to a report from an agricultural economist at the University of Missouri. Meanwhile, losses totaled $46.1 million in a six-county region of southwestern Iowa and $41.1 million in eastern Nebraska after crop insurance and other disaster payments, according to Farm Bureau reviews in those states.
“Many of our clients felt they had been victimized by the flood,” Murphy said.
Mark Sitherwood, presiding commissioner of heavily damaged Holt County in northwest Missouri, said Tuesday that he was looking into personally joining the litigation. He lost his corn and soybean crop and was forced out of his home for a year.
While praising the corps for restoring busted levees, he said, the agency could have reduced the damage if it had kept less water in its upstream reservoirs. He said county officials expressed concerns about the water levels in the reservoirs months before the flooding but were assured there was nothing to fear.
“If they would have released a little bit earlier that year, we feel like that the severity of it all could have been avoided,” he said. “We still feel they are holding too much water up there. I know we are under drought conditions, but that could change in a heartbeat. We don’t want to get caught again with heavy rains and a full reservoir system.”
Two lawsuits stemming from 2011 Mississippi River flooding also are pending. One was filed by those affected by the corps opening the Morganza spillway in rural Louisiana to lower water levels in heavily populated Baton Rouge and New Orleans. The other is tied to the corps’ intentional breaching of the Birds Point levee in southeast Missouri to save nearby Cairo, Ill.
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