WASHINGTON, D.C. — A federal judge has dismissed one of the main claims in a class-action lawsuit filed by Missouri farmers against FEMA in connection with last year’s record flooding.

U.S. Court of Federal Claims Judge Nancy B. Firestone last week granted the federal government’s motion to dismiss the claim that when FEMA exploded part of the Birds Point levee to relieve flooding pressure on cities upstream along the Mississippi River, it should have been considered a “taking” of farmers’ land downstream.

More than 130,000 acres within the Birds Point-New Madrid Floodway, located south of where the Mississippi and Ohio rivers converge at Cairo, Ill., was flooded after part of the levee was blasted to ease pressure on cities upstream, including Cairo. Given that the floodway only has flooded twice since the levee was built in 1927 – last year and in 1937 – Firestone wrote in her ruling that a “taking” claim doesn’t exist.

“The first flood took place in 1937. Allegations of two floods separated by nearly 75 years are not enough to support an inference of frequent and inevitably recurring flooding,” she ruled.

One of the attorneys representing more than 140 farmers in the lawsuit, J. Michael Ponder in Cape Girardeau, Mo., said he remains optimistic that farmers will receive damage compensation because another claim in the lawsuit was left untouched. “The farmers are not giving up, by a long shot. There’s no reason for despair here. This is just a trimming of the claim,” he said.

One part of the lawsuit still remaining is the claim FEMA violated terms of the easements it held with farmers in the floodway, given the large amounts of sand and gravel left on the land when waters receded. Ponder said that part of the lawsuit, called a “breach of contract claim,” could lead to the farmers receiving just as much in damages as the takings claim. The damage caused by opening the floodway was more severe, he said, than what was allowed under the flowage agreements paid to the farmers for the easements.

“The landowner probably doesn’t care whether his damages get paid under Count 1, which is the takings count, or Count 2, which is a breach of easements count. Just so long as the damages are paid,” the attorney said.

One participant in the lawsuit, fourth-generation corn, bean and wheat farmer John Story, said he’s not optimistic. “It was a taking and, of course, the government’s going to put their spin on it because they do whatever they want, whenever they want,” Story said. “They have no regard for private ownership rights. I don’t think we’ll ever see a penny out of the government.”