Plaintiffs Now Have Two Rulings In Their Favor Entitling Them to Recover Damages For Their Losses: Class Action Filed December 30, 2020
Additional pictures and charts
On March 13, 2018, the United States Federal Court of Claims Found in Plaintiffs Favor
Massive, atypical flooding along the Missouri River since 2006, including the catastrophic flood of 2011, threatened the livelihoods of landowners, farm communities and agri-businesses in Missouri, Kansas, Iowa, Nebraska, South Dakota and North Dakota. On March 5, 2014, the national law firm Polsinelli PC, based in Kansas City, Missouri, serving as lead counsel, and Cohen Milstein Sellers & Toll, PLLC, based in Washington, DC, filed a lawsuit in the United States Court of Federal Claims in Washington, DC, challenging the U.S. Army corps of Engineers’ management of the Missouri River. On October 15, 2014, the suit was amended adding new claimants.
Ideker Farms, Inc., et al. v. United States of America, Case No. 14-183L, is brought by farmers, landowners and business owners from six states who sustained losses from one or more floods occurring in 2006, 2007, 2008, 2010, 2011, 2013 and 2014. Flooding continued in 2015, 2016 and 2017. Plaintiffs are asserting that the Corps’ priority for flood control and the policies and procedures, which endeavored to protect landowners near the river from flooding, changed by 2004 to conform to environmental laws and regulations. Charging that the Corps’ actions have violated the takings clause of the Fifth Amendment that bars the Government from taking private property without just compensation, Plaintiffs are seeking reasonable and just compensation for losses caused by the flooding. The suit is not a class action, nor is it a suit predicated on the Corps’ mismanagement of the river.
The Honorable Nancy B. Firestone was assigned by the Federal Claims Court to try the action. Forty-four “bellwether” Plaintiffs deemed “representative” of all of the Plaintiffs were selected for the purpose of trial. The bellwether locations extend from Bismarck, North Dakota, to Leavenworth, Kansas. The case was bifurcated into two phases: Phase 1 addresses liability as to the causation of the flooding, and Phase 2, if necessary, would address losses incurred. Extensive discovery proceedings on Phase 1 ensued through late 2016, with over 100 depositions being taken and in excess of 20 million documents being produced.
Trial on Phase 1 began in the federal courthouse in Kansas City, Missouri on March 6, 2017, moved to the Federal Claims Court in Washington, DC on April 24, 2017, and recessed on June 23, 2017 for post-trial briefing and closing argument. Over 90 witnesses testified during 55 days of trial for the presentation of the evidence. Following the completion of post-trial briefing, closing arguments in the trial resumed in Kansas City the week of November 13, 2017 and concluded December 1, 2017. Trial lasted a total of 63 days.
On March 13, 2018, Judge Firestone issued her Trial Opinion on Phase 1 addressing causation of the flooding and found in favor of Plaintiffs in major respects. The Court found that changes made to river management and operations deprioritizing flood control in conjunction with the Missouri River Recovery Program (MRRP) beginning in 2004 changed the river and caused flooding in 2007, 2008, 2010, 2013, and 2014. This constituted a "taking" under the Fifth Amendment. Citing testimony of Plaintiffs' experts, the Court acknowledged that "recurrent and increased levels of flooding will continue into the future". The case now proceeds to Phase 2 where damages/losses from the flooding will be addressed. The Court's 258 page Trial Opinion is provided below, attached to this website. The Plaintiffs' Press Release and accompanying Fact Sheet, as well as the Court's Trial Opinion may be accessed via the links below:
Press Release
Fact Sheet
Trial Opinion
Missouri Corn Merchandising Council and Missouri Corn Growers Association
Big Lake: Impacted by recurrent flooding, Big Lake residents speak to the hardships and hurdles they've faced as a result of flooding.
2019 Missouri River Flooding
The flooding experienced in 2019 was not unexpected. Our experts predicted it due to the changes made to the Missouri River and its management. Those changes include (1) de-prioritization of flood control in the pursuit of the Missouri River Recovery Program (MRRP) to benefit fish and wildlife which began in 2004; (2) changes in the management of the mainstem system (the six dams and reservoirs) by modifying storage and releases; and (3) geomorphic changes to the lower river below the dams by destabilizing the banks, constructing "pallid sturgeon chutes" and "interception rearing complexes" or IRC's which serve to widen the river like in the past, and modifying or eliminating the river control structures (revetments, wing dikes, chevrons). Today more water is stored in the reservoirs which is counter to flood control. Due to the changes to the lower river, the river no longer has the carrying capacity it once had over the last five decades leading up to 2004, the river level rises more rapidly, the river runs higher, and the flow is slower which facilitates flooding. It is important to understand that due to the changes to the lower river channel, once the water gets into the "ditch", from whatever the source, it now flows south much differently than before much like a "sluggish drain". Pressure is then brought on the levees as the water is forced more laterally (in contrast with a "self-scouring" river running vertically ) than before and levee breaches in high water events have become all too common. All of this is consistent with Judge Firestone's findings in March 2018 in our case that the river is now flood prone and the flooding will be ongoing.
So we see in 2019 water levels along the Missouri River reaching historic highs. The resulting damages are horrific. Families, communities, businesses, and farmland are being hurt and destroyed. Again, this is consistent with a changed river that once again is flood prone despite the flood control efforts undertaken in the last century to harness the river. At least six of the top ten crests of the river in recorded history, dating back into the 1800s, have occurred since the changes were pursued on an unprecedented and accelerated basis by the Corps in 2004: 2007, 2008, 2010, 2011, 2013 and 2019. The river has experienced flooding in one way or another in every year since 2007 with less flooding realized in the drought years of 2009 and 2012. Blocked drainage and seepage, with some overbank flooding, took place in 2015, 2016, 2017 and 2018. This is posing problems for farming along the river as the drainage conduits running under or through the levees are blocked by a high river much more frequently than ever before.
You cannot attribute the 2019 flooding to just weather events including the "bomb cyclone" as the Corps wants to do. Such ignores the current modified state of the river as well as river management. It should go without saying that you cannot have flooding without water. The question is how is the water managed once it comes from whatever sources? Again, the "ditch" the "drain" has changed significantly. If the river does not drain as before, as it should to facilitate flood control, then flooding will result. That is the reality of our present situation. And we have a court decision that backs us up.
Accordingly, we believe that based upon the evidence adduced at our trial in 2017 and the findings of Judge Firestone, the Missouri River Recovery Program, the de-prioritization of flood control, increased reservoir storage, and the modified lower Missouri River are all factors contributing to and/or causing the ongoing flooding. We further believe that unless and until Congress intervenes to address this ongoing flooding, forcing changes, the flooding will continue and get even worse. We strongly recommend that the following steps need to be taken:
1. Immediately suspend the Missouri River Recovery Program;
2. Restore flood control to the highest priority in river management;
3. Return to reservoir storage levels like those prior to the MRRP;
4. Replace the river control structures and resume the maintenance of same; and
5. In conjunction with suspending the MRRP, stop the construction of "interception rearing complexes" and close off the upstream end of the "pallid sturgeon chutes".
On December 14, 2020 the Court Found the Plaintiffs Entitled to Recover Damages for their Losses
The damages phase of the action was tried virtually (the first in the nation by the Federal Court of Claims) during the late summer 2020 for three “bellwether” claims. On December 14, 2020, the Court entered its Trial Opinion finding the government has taken a permanent flowage easement over the Plaintiffs’ properties and that the three bellwether Plaintiffs are collectively entitled to recover damages for their losses including interest in excess of $10 million. The claims by the other Plaintiffs remain to be adjudicated but the ruling for the bellwether Plaintiffs is deemed to be “representative” of the remaining numerous claims. The Associated Press article published in the Omaha World Herald as well as the Trial Opinion, are below.
Class Action Filed December 30, 2020
On Dec. 30th, 2020, the Polsinelli law firm, along with co-counsel Cohen Milstein of Washington, D.C., filed a class action lawsuit in the United States Court of Federal Claims against the United States on behalf of over 60 plaintiff landowners from Kansas, Missouri, Nebraska and Iowa. The filing seeks just compensation from the Federal Government for the U.S. Army Corps of Engineers’ violation of the takings clause of the Fifth Amendment that bars the Government from taking private property without compensation.
The class action filing follows the Dec. 14th, 2020 decision by the United States Court of Federal Claims in Ideker Farms, Inc. et a!. v. United States of America, which found that a permanent flowage easement has been taken from landowners situated along the Missouri River for which compensation is owed. That decision remains subject to appeal.
The class of landowners are those along the geographical reach of the river from Burt County, Nebraska, on the north to Leavenworth County, Kansas, on the south, who flooded as a result of changes to river management under the Missouri River Recovery Program implemented by the U.S. Army Corps of Engineers beginning in 2004. The allegations in the class action are consistent with those in Ideker, which has been extensively litigated.
“This action follows the favorable rulings received in our related mass action case for the Ideker plaintiffs, and seeks to compensate others for the unconstitutional taking of their properties by flooding. Many along the river have been hurt and deserve to be compensated” said lead counsel R. Dan Boulware, with Polsinelli.
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This website is for informational purposes only, and intended for citizens and property owners who are interested in this pending action and/or concerned about the recurrent flooding in the Missouri River Basin since 2006.
