By DOUG SCHMITZ

Iowa Correspondent

DES MOINES, Iowa — Although it’s been nearly two months since a federal judge in Washington, D.C., ruled the U.S. Army Corps of Engineers liable for causing recurrent flooding and damaging farms and property along the Missouri River in four Midwest states, the case is far from over.

According to the March 13 ruling in the case of Ideker Farms et al v. United States of America, the federal government must compensate the 372 plaintiffs comprising of farmers, landowners and business owners in Missouri, Iowa, Nebraska and Kansas for the flood damage, estimated to exceed $300 million.

Judge Nancy B. Firestone of the United States Court of Federal Claims found in favor of the plaintiffs in five of the six years the flooding was claimed, dating back to 2007, disallowing the flood claims in 2011, citing the Corps’ deprioritized flood control in 2004.

Jennifer Williams Zwagerman, associate director of the Agricultural Law Center at Drake University Law School in Des Moines, told Farm World the court’s initial decision found the Corps should have known their actions of releasing water would cause (and did cause) flood damage to the plaintiffs.

Led by Polsinelli in partnership with Cohen, Milstein, Sellers & Toll, the mass action lawsuit was originally filed March 5, 2014, and alleged the Corps’ actions violated the takings clause of the Fifth Amendment, which bars the government from seizing private property without just compensation.

“This level of damage essentially removed the plaintiffs’ ability to use the land in the manner of choice (in this case, primarily agricultural production) and because of that, the government ‘took’ the land,” Zwagerman said.

However, she said it’s important to note the decision applies only to years in question where it appears the release of water by the Corps was attributed only to decisions related to wildlife and fish preservation. “For example, 2011 was excluded because the government was able to show that in that year, at least some of the release was done in order to prevent damage to various dams and dikes due to unprecedented rainfall and snowmelt.

“For that year, the plaintiffs could not say that the only reason for the water release and flooding was due to the changes in procedures to support fish and wildlife in the river basin,” she explained.

The ruling marks the end of phase one, which began last March, focusing on liability and the cause of the flooding. The case will now proceed to phase two, where the court will determine the extent of losses due to the taking.

“This was only an initial finding of liability and causation as to these claims, and the process is far from over,” Zwagerman said. “Plaintiffs with claims only related to 2011 flooding were dismissed because of the inability to show that the flooding was caused only by decisions related to water releases tied to compliance with the Endangered Species Act. That decision has already been appealed.

“The remaining plaintiffs now go on to the next phase of litigation, and there is no guarantee that any remaining plaintiffs are entitled to or will receive damages,” she added. “What’s left to determine is if there are any defenses that the U.S. can successfully argue, or if the remaining plaintiffs might be entitled to damages and, if so, what amount.”

A May 3 statement from the Corps to Farm World said: “The lawsuit is ongoing and as a matter of policy, the U.S. Army Corps of Engineers does not comment on litigation. The U.S. Army Corps of Engineers and the Department of Justice continue to coordinate as the lawsuit moves into the second phase.

“The USACE will continue to comply with the laws and regulations for operating the Missouri River Mainstem System to serve the eight congressionally-authorized purposes, which, along with the Bank Stabilization and Navigation Project, provides up to $1.8 billion in annual economic benefits to the basin.”

Zwagerman said there are a number of factual and legal issues remaining that will affect the outcome for all involved.

“Appeals from any final decision are sure to follow,” she said. “It would not surprise me if there are not several more years before there is a truly final disposition in the case, either through the courts or a settlement between the parties.

“The history of this issue goes back long beyond this lawsuit, as there was litigation related to the Corps of Engineers’ failure to meet requirements of the Endangered Species Act, and yet the decisions made to comply with that law in essence led to the lawsuit here.”

She said the argument is that decisions made by the Corps have “changed the landscape and flow of the river in a way that is continuing to cause more frequent and extreme flooding than was seen historically.

“It is going to be important to see how, or if, the Corps works to address this in the future, working to reduce the risk of flooding, while also meeting other requirements and regulations, such as those related to the Endangered Species Act.

“This might be an impossible task on the part of the government, but for many of these producers, the idea of selling or leaving the land they have been farming for years is likely not a viable option, either,” she added.