WJ Editorial

Missouri River Decision Prompts Misinformation

Last week, we reported on the important ruling in the Ideker Farms et al. vs. United States of America case. Judge Nancy Firestone of the U.S. Court of Federal Claims ruled in favor of the plaintiffs, 372 landowners whose property lies along the Missouri River. Firestone found the Corps of Engineers liable for increased flooding caused when the Corps, in 2004, added protection of three endangered species—the pallid sturgeon, least tern and piping plover—to its previously authorized missions, including navigation and flood control.

According to a fact sheet by Polsinelli, the Kansas City law firm that represented the plaintiffs, “The Missouri River has changed since 2004, and it is now more prone to flooding. For over six decades, the Corps placed the highest priority on flood control as mandated by Congress in the Flood Control Act of 1944. The water management guidelines and the Corps’ operations of the Missouri River, under last century’s new reservoir system and the Bank Stabilization and Navigation Project, resulted in the narrowing of the river, stabilization of the banks and abatement of flooding. Since 2004, that has changed with the de-prioritization of flood control by the Corps and aggressive construction of habitat for fish and wildlife. The changes have adversely affected those in the river basin.”

Changes in the Corps’ policies and practices included:
• increasing the water storage levels and altering the schedule for water releases from the six large reservoirs located along the upper basin of the river upstream from Yankton, S.D.;
• notching or lowering numerous river control structures (dikes and revetments) along the river, causing the scouring of the banks and widening of the river;
• eliminating or allowing wing dikes and revetments to degrade;
• creating emergent sandbar habitat and shallow water habitat;
• restoring the historical and natural chutes of the river, sometimes referred to as secondary channels; and
• reintroducing an enormous amount of sediment into the river, causing aggradation.

Judge Firestone exempted the flood of 2011, finding that the Corps’ actions in that instance were not aimed at protecting species. However, R. Dan Boulware, the lead attorney for the plaintiffs, has assured The Waterways Journal that the plaintiffs intend to ask the judge for a reconsideration of this exclusion. The plaintiffs believe they have evidence that the 2011 flood was also caused or exacerbated by Corps actions.

The damage to the plaintiffs’ properties amounted to an illegal “taking” of property without compensation, violating the Fifth Amendment of the Constitution, the judge ruled. Beginning in October, after the parties have assembled their experts and evidence, the damages portion of the trial will resume. Some estimates of possible damages go as high as $300 million.
So far, so straightforward. But St. Louis Post-Dispatch columnist Tony Messenger drew a somewhat bizarre conclusion from this ruling.
Messenger noted that the ruling could “cost taxpayers hundreds of millions.” A published response the next day from The American Waterways Operators’ Lynn Muench noted that the Corps’ Missouri River management plan has already cost taxpayers more than $3 billion. She also cited a study disputing the theory that spring pulses are necessary to support the pallid sturgeon.
Messenger is swayed by Washington University geology professor Robert Criss, who is well-known for arguing after floods that the Missouri (and other rivers) should be freed of all flood-control structures and allowed to revert to a “natural” state. While Messenger agreed that the damage to property owners was an illegal “taking,” he wrote that the farmers never should have had that land in the first place. “The proper response to the taking of the farmers’ land over the past couple of decades isn’t to compensate them, but to actually take the land. Buy the farmers out for good. Bring back the wetlands and chutes that naturally allowed the river to flood in the flood plain that has long since been degraded.”

Messenger peremptorily dismisses the barge industry, writing, “The barge industry growth contemplated in 1944 when the government launched its plan to try to tame the Missouri River never came, so stop pretending.”
This is disingenuous to the point of dishonesty. Besides the Corps’ flow constraints, what temporarily killed barging on the Missouri River wasn’t the industry’s failure to show up, but a 10-year-long drought beginning in the 1980s. Now that the drought has ended, Missouri River barging is recovering, helped by the efforts of the newly revived Port of Kansas City. As Muench notes, “Due to reliable flows in recent years, Missouri River navigation is increasing, and can play an integral role in efforts to make U.S. products more competitive abroad.”

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