Government Ordered to Pay Landowners on Lower Missouri River

December 18, 2020

OMAHA, Neb. (AP) — The federal government must pay some landowners along the lower Missouri River for flooding damage caused by changes the Army Corps of Engineers made to the river to protect endangered species, a judge has ruled.

The ruling this week by Senior Judge Nancy Firestone, with the U.S. Court of Federal Claims, could cost the government millions of dollars and increase the cost of protecting endangered species, The Omaha World-Herald reported.

“This is a big deal,” said Anthony Schutz, an associate law professor at the University of Nebraska. “The potential liability could be in the hundreds of millions of dollars depending upon how many people are included.”

The ruling affects land along the river from Sioux City, Iowa, to St. Louis, although not all landowners will qualify for compensation and not all flood-related damages will be covered.

Firestone ruled that the Corps caused increased flooding by changing the river’s flow to improve habitat for some species to comply with the Endangered Species Act. The agency violated constitutional protections against taking property without compensation because it did not pay landowners for the damage, she said.

Attorney Dan Boulware, who represented more than 400 plaintiffs in the lawsuit, said his firm has tried unsuccessfully to negotiate a settlement with the government. He expects the government to appeal.

“The government needs to step up and do what’s right,” he said.

Neither the Corps nor the U.S. Justice Department would comment on the ruling, the World-Herald reported.

U.S. senators from Nebraska, Iowa, Missouri and Kansas wrote a letter to the secretary of the Army last month urging the agency to settle the case.

“The Corps continues to ignore clear liability for its actions and instead expresses its intent to exhaust all appeals for years to come,” the senators wrote. “We once again strongly urge that the Corps cease further delay and make our constituents whole.”

It is not a class-action lawsuit, so each individual plaintiff’s case is judged separately to determine if damages are warranted. Firestone said a test sample showed 16 of 44 property owners didn’t qualify for damages.

The lawsuit involves flooding from 2007 to 2015, except for damages from historic flooding in 2011. It also does not include flooding last year, which occurred after the case was brought.

The judge ruled that the Corps caused an average reduction in land values of about 25% along the river. A specific dollar amount for the losses has not been determined.

The Corps does not have to pay for crop damage or damage to farm equipment and buildings, Firestone said. Boulware said the plaintiffs are considering whether to appeal that part of the ruling.

Instead, the Corps must pay for a “flowage easement,” a term for privately owned land on which the Corps has some perpetual rights. The terms for the Corps’ use of the land involved in this case must still be determined.

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