By Sam LumpkinRich McConnell, and Esteban Herrera 

On March 13, 2018, the US Court of Federal Claims sided with landowners seeking compensation from the US Army Corps of Engineers for increased flooding caused by the Corps’ management of the Missouri River. In Ideker Farms, Inc., et al. v. The United States, the court found that 44 initial representative plaintiffs had a basis to assert their claim for a taking without just compensation under the Fifth Amendment.

The case arises out of the Corps’ historical management of the Missouri River. In 1917, Congress adopted the Flood Control Act, which placed flood control within the responsibility of the Corps. On the Missouri River, the Corps constructed a series of levees to contain flooding, as well as a series of structures within the river to aid in flood control, including six dams at various points in the river. The Corps’ operation of these dams is governed by a Master Manual created by the Corps to interpret its statutory responsibilities and operating approach.

In 1979, the Corps’ plan for managing the Missouri River specifically provided that flood control was its first priority, and that fish and wildlife were the last priority. According to the US Fish and Wildlife Service (which plainly had a different order of priorities), the construction of river control structures altered the river and harmed wildlife in the Missouri River Basin. To mitigate these harms, in 1986 Congress authorized creation of a project to address the damage, including reconnecting the river to its floodplain and creating and restoring habitat areas. This strategy (and funding) became part of the Corps’ overall program in the Missouri River Basin, and was re-authorized and expanded in 1999 and 2003. But the Corps’ Master Manual continually provided that the Corps’ first priority was flood protection.

Throughout this time, the Corps was repeatedly sued by states and environmental groups in attempts to force the Corps to change its management of the river. And the Fish and Wildlife Service consistently pressured the Corps to take additional steps to protect the Missouri River Basin ecosystem, in part through its authority under the Endangered Species Act. The Corps resisted the suggested steps because of its concern about the effect on flooding, but in 2004 the Corps was finally ordered to revise its 1979 Master Manual to comply with its obligations to the Fish and Wildlife Service to ensure protection of certain species, and to implement changes consistent with prior recommendations of that agency. It did so the same year.

Following the changes to its Master Manual in 2004 the Corps made changes to its operation of the flood control system, including keeping a larger amount of water in reservoirs to benefit fish and wildlife, and to begin releasing water in such a way as to promote more varied river stages. But the consequence of some changes was to destabilize the banks of the river and increase the potential for flooding. These risks became reality from 2007 to 2014, which the court found included some of the worst flooding years in the river’s history. This suit arose from the worst flooding of those years.

In its 259-page ruling with detailed factual findings, the court addressed three threshold issues: causation, foreseeability, and severity. First, the court found that because the Corps’ series of actions were all taken for a single purpose, the collective changes to the Corps’ management of the Missouri River could all be considered a single act in determining causation of the flooding. As to foreseeability, the court required that the plaintiffs must prove the flooding was the “direct, natural, or probable result” of the Corps’ actions, judged on an objective basis. As a result, if the Corps would have foreseen the consequences of its changed management by conducting a reasonable investigation, the flooding could be considered foreseeable. Finally, the court found that a plaintiff could establish that the flooding was severe enough to constitute a taking if the flooding would deprive them of the ordinary use of their property.

Ultimately, the court made findings on the evidence presented by each of the representative plaintiffs on these three points – causation, foreseeability, and severity – accepting some claims and rejecting others. Some claims will move forward to the next phase of the case, where the court will rule on any defenses to the plaintiffs’ claims, as well as any other issues related to proving entitlement to just compensation for the alleged taking. But so far, this case shows a pathway for other plaintiffs who may seek to hold the Corps responsible for flooding related to the Corps’ river management decisions. This case arose due to the Corps’ management of the Missouri River in particular, with a lengthy history of debate over appropriate flood control strategies, but similar circumstances could benefit from a roadmap to claims against the Corps. On the Mississippi River, for example, the Corps has also been responsible for flood protection and maintains a series of levees and river control structures to manage sediment and water levels throughout the year. And the Corps has also been involved for decades in regulation of wetlands, navigation, and coastal activities, with its decisions having ramifications on the effects of land loss in the present day. Those decisions will likely face increasing scrutiny in the near future.

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2014cv0183-426-0