By STEVE BINDER
Illinois Correspondent

CHARLESTON, Mo. — Lawyers representing a group of Missouri Bootheel farmers who sued the federal government over their flooded land say their case likely will turn on the status of easements obtained – in some cases, decades ago.
State officials tried all the way to the U.S. Supreme Court to stop the U.S. Army Corps of Engineers from exploding parts of the Birds Point levee, a move that started May 2 and led to the flooding of some 130,000 acres of prime farmland.

It was the first time since the 1937 flood that federal officials used the Birds Point-New Madrid floodway, letting water flow into the 200 square-miles area to take pressure off of upstream Cairo, Ill., where the Mississippi and Ohio rivers converge. That city set a new high-water mark, hitting 61.72 feet shortly before the levee was exploded. The previous record was 59.5 feet in 1937.

The farmers’ lawsuit claims the government violated landowners’ property rights under the Fifth Amendment to the U.S. Constitution. Flooding the land by exploding the levee without easements on all property allegedly violated the “taking” clause in the amendment, meaning it was done without due process or compensation, according to the lawsuit.

Lawyers are continuing a lengthy process of researching the easements, which the Corps said were obtained following construction of the levee in 1928, said Corps spokesman Jim Pogue. He declined further comment, citing the pending lawsuit in the U.S. Court of Federal Claims in Washington, D.C.
Phil Barkett, a partner at the Cape Girardeau, Mo., law firm Cook, Barkett, Ponder & Wolz, said it is researching the history of all the easements. “That’s one thing we will work through in this lawsuit, as to which properties have easements on them and the validity of those easements,” he said. “We’re not sure what all of those easements say.”

Law partner J. Michael Ponder said easements do not exist on all property in the floodway.

“The Corps did not have easements on all the affected tracts of property,” he explained. “Some had ancient easements with no economic value, and some had easements that reserve the right of the property owner to sue for damages.”

The federal government has 60 days, until early July, to file a response to the lawsuit. Barkett and Ponder said the lawsuit could take years before it is concluded.

“Most of them have been allowed to go in by boat and inspect their property at least once, but most of the land, to my knowledge, is still underwater. I don’t think any acreage of significance has come out yet,” Barkett said.
About half of the Bootheel’s farmers had active crop insurance policies, estimated resident Roy Presson, who farms about 2,400 acres. Damage assessments are being compiled, in part to help complete regulations for a federal disaster declaration.

Uncertainty remains for most farmers, from the outcome of the lawsuit to whether they’ll be able to plant at all this season.

“Are we going to be able to farm our ground again? When will we be able to? What’s it going to cost to get it back in shape again?” asked Daniel Babb, who has farmed in the floodway for nearly four decades.