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When Was the Case Filed?

On March 5, 2014, Polsinelli PC and Cohen Milstein Sellers & Toll filed a lawsuit in the Federal Claims Court in Washington, DC, challenging the U.S. Army Corps’ of Engineers’ management of the Missouri River, seeking reasonable and just compensation for damages caused by the flooding.  The lawsuit was amended October 15, 2014, adding more Plaintiffs.  There are a total of 372 claimants in this “mass action.”  

What Does the Case Claim?

The claims in the suit are brought under the Fifth Amendment of the U.S. Constitution for the unconstitutional taking of private property without compensation.  The suit is not a class action, nor is it a suit predicated on the Corps’ mismanagement of the river.

Plaintiffs assert that the Corps’ priority for flood control, and the policies and operations designed to protect landowners near the river from flooding changed beginning in or by 2004 to conform to environmental laws and regulations, as addressed and confirmed in a filing by the federal defendants on March 19, 2004, in the United States Supreme Court, In re. North Dakota, et al., v. Ubbelohde, et al., Case No. 03-935.

Changes in the Corps’ policies and practices, which Plaintiffs allege have directly led to the recurrent, atypical flooding include:

  • 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, South Dakota;
  • The notching or lowering of 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;
  • The creation of 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.

Releases from the dams to benefit the least tern, piping plover and pallid sturgeon have altered previous release patterns.  The construction of emergent sandbar habitat for the birds and shallow water habitat for the fish have significantly altered the river’s geometry.  Plaintiffs contend these cumulative changes have raised the river’s surface water level, particularly during high-flow events, causing overbank flooding, blocked drainage and enhanced groundwater seepage.

Why Was the Case Filed?

The Missouri River has changed since 2004; it is now more flood prone.  For six decades, the Corps placed the highest priority on flood control as mandated by Congress in the Flood Control Act of 1944.  Their water management guidelines and operations of the Missouri River resulted in the narrowing of the river, the stabilization of the banks, and the abatement of flooding.  That changed by 2004 with the Corps’ deprioritization of flood control, and the aggressive and accelerated construction of habitat for the species.  The changes are and have adversely affected those in the river basin.

Why Did Polsinelli and Cohen Milstein Sellers & Toll Get Involved?

Polsinelli and Cohen Milstein know the importance of agri-business in the heartland, and strongly support the farmers, business and communities that have been adversely impacted by this flooding.  The stories of personal loss and hardship are many.  We see and understand the impact the Corps’ policy change has had on those in the Missouri River Basin.  Damaged property resulted in economic loss for businesses and families in Missouri, Kansas, Iowa, Nebraska, South Dakota and North Dakota. 

For decades, Missouri River residents invested their fortunes and futures in developing farms, businesses and communities on this land in reliance on the Corps managing the river in a way that would deter flooding.  Valuable farmland is being permanently destroyed, and a way of life is now threatened.  Agri-business and commerce along the river are in peril of being lost as a result of the Corps’ policy shift away from protecting residents and businesses.

How Has the River Changed?

The BSNP Mitigation Project authorized by Congress in 1986, which led to the reopening of natural chutes or secondary channels in the early 1990s, began to change the river.  The amendment of the Corps’ Master Water Control Manual in 2004, the adoption of the 2003 Amended Biological Opinion at that time, and the pursuit of the Missouri River Recovery Program made yet additional, important and substantial changes to the Corps’ river operations.  Flood control, which had been the Corps’ top priority for six decades under the Master Manual, was deprioritized in 2004 and placed on an equal basis with all other authorized river uses. 

Additionally, modifications to the BSNP river control structures were accelerated in 2004, and chutes and backwaters continued to be constructed to build habitat for the fish and wildlife.  Flows were adjusted for the species.  An enormous amount of sediment was reintroduced into the river.  The geometry of the river changed.  These cumulative changes adversely impacted the risk of flooding along the river. 

The result has been recurrent overbank flooding, blocked drainage, and increased groundwater seepage due to a higher river, unlike before.  For the five-year period from 2007-2011, the Basin landowners in northwest Missouri experienced two 100-year floods and then two 500-year floods.  Five of the top 10 historical river crests have occurred since 2006.  Blocked drainage and groundwater seepage are now frequent problems for farmers.  Atypical flooding continues and will continue unless and until changes are made, including a return to flood control being a priority.

What Is the Import of the Court's March 2018 Trial Opinion?

Very simply, the Court has validated many of the Plaintiffs claims that the federal government engaged in the "taking" of private property without compensation along the Missouri River since 2004 by changing the River in order to comply with the federal Endangered Species Act (ESA).  The Court recognized the Plaintiffs claims for 2007, 2008, 2010, 2013, and 2014 as well as potentially claims into the future.  In this respect, citing testimony of the Plaintiffs' experts, the Court acknowledged that "recurrent and increased levels of flooding will continue into the future."

Another aspect of the Court's ruling is that the Corps' changes have caused farm drainage located behind levees to be increasingly blocked due to higher water surface elevations blocking drainage ditches and closing flap gates at the river's edge.  This has an obvious adverse impact on farm operations and will continue into the future.

Polsinelli and Cohen-Milstein are continuing their efforts on behalf of Plaintiffs and other landowners along the river to aggressively address this situation and bring claims for legal redress.  With this Court's findings, there is a validation of the flooding claims.  We clearly have a changed river.

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