Judge Orders Corps To Pay In Missouri River Suit
The judge in the Ideker Farms Missouri River “takings” case has ordered the Corps of Engineers to pay a group of landowners along the Missouri River for flood damages due to the Corps’ actions in creating structures to protect endangered species as part of the Missouri River Recovery Program (MRRP). The plaintiffs contended that those structures weakened the Corps’ flood control mission and directly caused flooding that damaged their property between 2004 and 2014. A judge agreed with the plaintiffs in the Phase I part of the case, which is named for Roger Ideker, a farmer and plaintiff in St. Joseph, Mo.
The Corps could still appeal this latest order to the federal circuit. Neither the Corps nor the Justice Department has publicly commented on the case to news organizations, but a previous ruling already established that the Corps is responsible for increased flooding.
“It’s long past time for the Corps to step up and do what they should have done years ago: make these property owners whole,” said Dan Boulware, lead attorney on the case for Polsinelli, one of the two law firms that represented the landowners. Boulware told The Waterways Journal he is confident that any appeal would be rejected. “If the Corps argument on appeal prevails, no one could ever recover damages in such a case,” he said.The Corps’ measures to protect endangered species included actions like building up islands in shallow water and lowering or cutting notches in river training structures designed to both enhance navigation and reduce flooding, causing bank scouring and river widening. In her 2018 ruling, Judge Nancy Firestone assigned the Corps responsibility for certain floods within the period between 2004 and 2014, ruling that others might have occurred anyway. She also said some flooding that might have occurred anyway was made worse by the measures of the MRRP. The judge’s ruling didn’t apply to the 2019 floods, which occurred afterwards.
In Phase II, a new group of representative plaintiffs were allowed to present evidence about post-2014 flooding. The lawsuit is a “mass action,” rather than a “class action,” meaning precise flood liability and damage amounts must be calculated individually for each plaintiff. The Corps must pay for a flowage easement, a legal term for certain perpetual rights the Corps has on privately owned land.
In her 2018 ruling, Judge Firestone estimated the total value of the affected land at $300 million (at the time).
The Kansas City and Omaha engineer districts are currently working to repair multiple damages from the 2019 floods on the Missouri River, including damaged or breached levees, washed-away training structures and increased silting that has resulted in the need for barges to light-load. Towboat captains have reported increased groundings, especially in the river’s lower reaches.
In October, a letter to the Corps from several senators from states bordering the Missouri River estimated that the funding need for the Lower Missouri River stands at about $200 million, about 10 times the currently available funds. The senators mentioned the contribution of habitat policies under the MRRP to the worsening flooding.
Senators from Missouri River states have also written a letter to the secretary of the Army, urging the Corps to settle the Ideker Farms case. Missouri’s senators, Roy Blunt and Josh Hawley, have both introduced bills in Congress requiring the Corps to manage the Missouri River for its original flood control purposes only.