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Army Corps seeks dismissal of Missouri floodway farmers' lawsuit

Friday, March 30, 2012 | 3:40 p.m. CDT; updated 7:02 p.m. CDT, Saturday, March 31, 2012

The U.S. Army Corps of Engineers is seeking to quash a class-action lawsuit brought by more than 140 Southeast Missouri farmers seeking millions in damages caused by last May's intentional breaching of the levee protecting the Birds Point-New Madrid Floodway.

The U.S. Attorney's Office in Washington, D.C., acting on behalf of the government and the corps, has filed a motion to dismiss the lawsuit in the U.S. Court of Federal Claims. Oral arguments are scheduled for April 10 in the nation's capital in front of federal Judge Nancy B. Firestone.

In its motion, the corps claims the lawsuit fails to state a legitimate claim for which relief can be granted. Primarily, the motion asserts that because the floodway isn't intentionally breached often, it doesn't constitute a government "taking" of land.

Cape Girardeau lawyer J. Michael Ponder, who is representing the farmers, called the motion nonsense.

"It doesn't matter if it's one time or five times, if you intentionally damage someone's property — which is what the corps did here — it's a taking," Ponder said Thursday. "The case law bears that out."

In May, the corps used explosives to breach the levee in three spots to allow the swelling Mississippi River to inundate large tracts of floodway property in Mississippi and New Madrid counties. The corps said at the time, and the courts agreed, that it was its right to intentionally activate the floodway to alleviate flooding in other areas.

The actions of the corps, by its own estimate, created more than $300 million in damage to private property, including $80 million in crop losses. More than 90 homes suffered substantial damages, according to the lawsuit, along with destroyed farm operations and equipment. The intentional breach and subsequent flooding also destroyed property and devalued ground. The lawsuit by the farmers says that constitutes a "taking" by the corps under the U.S. Constitution's Fifth Amendment, which is a part of the Bill of Rights and protects against abuse of government authority in a legal procedure.

The U.S. Department of Justice declined to comment, citing ongoing litigation.

In its rebuttal, the corps says the land was not permanently flooded as a result of the floodway's operation. As a matter of law, the motion says, one flood does not constitute a taking and that "inevitable recurring flooding must be based on actual flooding events, not speculative future floods." In fact, the motion to dismiss says, the floodway would flood more frequently if the levees were not in place.

Ponder and his clients disagree.

"We believe the corps' motion is not well founded," Ponder said. "We believe the taking claims will go forward and that, in the end, the court will allow the case to proceed to trial."

The lawsuit does not put an exact price on what the farmers hope to receive in monetary damages. Ponder said the lawsuit is asking the court to make a "fair determination" of what the damages are.

John Moreton of Cape Girardeau, who farms 1,600 acres in the floodway, is one of the plaintiffs. His family has not been reimbursed for property damage or loss of wheat that he couldn't plant because his land was under water. While Moreton would not give an exact estimate of what his actual losses are, he agreed that "tens of thousands" is not inaccurate.

"We didn't get any reimbursement for any damages to the land," Moreton said. "This court case is trying to get some of those damages."

If the judge sides with the farmers, the next step will be to set a schedule for discovery — the pretrial phase in a lawsuit in which each party can obtain evidence from the opposing side through request for documents and taking depositions, for example.

If it reaches the trial level, courts of claims decisions are decided by a judge, not a jury. Ponder said he hopes the matter goes before a trial judge by the end of the year.


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