Judge Blames Corps For Missouri Flooding

A federal judge has ruled that the Corps of Engineers is responsible for increased flooding on the Missouri River since 2007 because beginning in 2004, in taking measures to provide a better environment for protected species, it deprioritized its statutory mission of flood control. The decision in the four-year-old suit could mean hundreds of millions of dollars in liability for the Corps.

The judge made an exception for the historic floods of 2011, which she said resulted from factors beyond the Corps’ control.

Judge Nancy B. Firestone of the United States Court of Federal Claims was responding to a 2014 suit brought by 372 plaintiffs, including farmers, landowners and business owners.

The plaintiffs claimed that the Corps’ actions in altering its management of the Missouri River in order to provide a more protected environment for species like the pallid sturgeon, least tern and piping plover resulted in an increase in flood events that damaged property and violated the “takings” clause of the Fifth Amendment of the U.S. Constitution.

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Those measures, beginning in 2004, included such practices as notching dikes and reopening chutes to provide passage for protected fish species. The plaintiffs say the measures resulted in harm to property in Missouri, Iowa, Nebraska and Kansas.

In her ruling, Firestone wrote that the evidence established that the Corps’ changes to the river “had the effect of raising the Missouri River’s water surface elevations in periods of high flows.” She found that since 2007, the flooding has been among the worst in the history of the river and the Corps’ changes in river management caused or contributed to the flooding.

Citing expert testimony, the court said that “recurrent flooding in the Missouri River Basin … will continue into the future,” and that increased blocked drainage of farmlands due to higher river levels is an ongoing problem.
The 63-day long trial, which began in Kansas City, Mo., and moved to Washington, D.C., concluded in December.

Plaintiffs were represented by the Kansas City law firm Polsinelli. In a press release, lead attorney R. Dan Boulware said, “Today is the day the plaintiffs have patiently waited for and have fought for during the past four years. Although we do not concur with the court’s conclusions regarding the 2011 flood event, we are very pleased with the court’s conclusions regarding the Corps changes to the river causing flooding, and we are certainly pleased with an outcome that will provide substantial compensation to plaintiffs living along the river who have suffered significant flood damage and losses throughout the past decade. It should now be clear that we have a changed river–one that is flood prone. We hope the Corps of Engineers will now do the right thing for our clients and that Congress will also act soon to restore flood control to a higher priority as it was during the last century.”

At this writing, the Corps has not indicated whether it will appeal. The next stage of the trial is the determination of damages.

The case is titled Ideker Farms et al v. United States of America.