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Mississippi Sues U.S. Government Over Old River

Mississippi Secretary of State Delbert Hosemann and Mississippi Attorney General Jim Hood announced February 11 they have filed a lawsuit against the federal government of the United States over what they are calling the “unconstitutional taking of almost 8,000 acres” of state-owned land. The state is seeking damages in excess of $25 million.

“This is a historic day for our state,” Hosemann said. “Today, our state and three public school districts allege the United States has taken property deeded to Mississippi 200 years ago.”

The dispute involves the frequent flooding of what is known in Mississippi as 16th Section land, state-owned land set aside in each county to benefit public schools. Throughout the state, about 640,000 acres is set aside as 16th Section land, with the income generated through timber sales and other means on that land providing funding for public schools.

The lawsuit argues that the construction and current operation of the Old River Control Structure, located on the west bank of the Mississippi River at Mile 314.5 Above Head of Passes, has led to the frequent flooding and unconstitutional taking of 16th Section land in Claiborne, Adams and Wilkinson counties, all located along the Mississippi River in Southwest Mississippi north of Old River.

Construction And Function Of Old River

Structures at Old River were built between the 1950s and the mid-1980s to regulate the flows of the Red and Mississippi rivers into the Atchafalaya River. Old River was built to prevent the Atchafalaya River from capturing the flow of the Mississippi River. Over the years, more and more of the Mississippi’s flow was diverting to the Atchafalaya, which offers a much shorter outlet to the Gulf. When Congress ordered construction of Old River in the early 1950s, the Atchafalaya was already capturing about 30 percent of the combined flow of the Red and Mississippi rivers, with a complete change in course imminent. The U.S. Army Corps of Engineers was tasked with building a structure to maintain that 70/30 ratio.

The stakes were huge. A course change would inundate communities along the Atchafalaya and threaten the Mississippi River’s ship channel. What’s more, a course change would threaten the freshwater supply for communities and industries below Old River, including the cities of Baton Rouge and New Orleans and the petrochemical facilities in between.

The Old River Control Structure has narrowly avoided failure at least once. During the flood of 1973, the structure came so close to collapse that the Corps later added the Auxiliary Structure as a relief valve for the original floodgates. The system was again put to the test in 2011.

And despite the efforts to contain the river by way of floodways, spillways and the structures at Old River, many believe the course change is inevitable, especially considering the continued development farther upriver that discharges more and more water into the Mississippi River.

Collateral Damage In Mississippi

Hosemann and Hood, however, argue that limiting the amount of the Red and Mississippi rivers flowing into the Atchafalaya at 30 percent is resulting in the frequent and ongoing flooding of the 16th Section land in Claiborne, Adams and Wilkinson counties.

According to Hosemann’s calculations, the rate of flooding on the 8,000 acres in question has increased dramatically since the 1973 flood and subsequent expansion of Old River and ongoing development within the watershed of the Mississippi River. Between 1950 and 1972, flooding occurred on those tracts of land in Claiborne, Adams and Wilkinson counties an average of once every 107 days.

Between 1973 and 2016, that frequency increased to once every 15.7 days.

That frequent flooding has resulted in increased siltation, deterioration of habitats and tree mortality, among other issues, on the land adjacent to the Mississippi River.

“All of the money raised by the leasing of 16th Section lands, timber sales, and other transactions related to these properties goes directly to our public schools,” Hosemann said. “When this public trust land is destroyed unlawfully, our children are the ones who suffer. The only responsible action is for the federal government to make our school districts whole.”

The lawsuit cites the 5th amendment to the Constitution of the United States of America, which says that private property shall not “be taken for public use, without just compensation.”

Prior to the lawsuit, Hosemann had for years advocated a different resolution to the frequent flooding of 16th Section land. In an editorial that appeared in the Delta Business Journal dated August 18, 2017, Hosemann wrote, “A more flexible process allowing for changes to be made based on Old River Control Structure operations, scientific data and hydrological studies, impacts on states, and other relevant factors, may reduce the damage currently born by Mississippians.”

In the same editorial, Hosemann also argued diverting more of the Mississippi’s flow at Old River could also reduce the Corps’ dependence on the Bonnet Carré Spillway, which diverts a portion of the river’s flow into Lake Pontchartrain during high water periods. That diversion, Hosemann pointed out, also negatively affects Mississippi by reducing salinity levels in the state’s oyster reefs.

“The last time Bonnet Carré was used for flood control, the Mississippi Gulf Coast lost millions of dollars in oyster beds and related income,” he wrote.

As recently as 2017, Hosemann has repeated the same arguments before the Mississippi River Commission, which oversees flood control measures along the Mississippi River and tributaries.

In filing the lawsuit, Hood echoed Hosemann’s argument.

“The school boards, with oversight by the Secretary of State, have a duty to make sure that the lands earn the most revenues possible from sources such as hunting and farming leases and sale of timber and oil,” he said. “I have a duty to make sure that no individual, company or even the federal government takes property from our state, its citizens and, particularly, our children without paying for it.”

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