Lawsuit seeking damages for area farmers because of levee breach

Wednesday, May 4, 2011
J. Michael Ponder, attorney Cook, Barkett, Ponder and Wolz LC, speaks at a news conference announcing the filing of a lawsuit on behalf of farmers in the floodway beneath Birds Point levee. Law partner Phil Barkett stands to the right. (M.d. Kittle)

Terry and Mary Beth Lee's farm stands -- or stood -- on the land that her great-great-grandfather settled more than 200 years ago. Her dad worked the fields beneath Birds Point levee up until he and his wife died within three months of each other in 1993, the year of the last 100-year flood.

"We vowed to them before they died that we were going to go to the farm and build a house there," Mary Beth Lee said.

Today, two centuries and a way of life are underwater after the U.S. Army Corps of Engineer's detonations late Monday and Tuesday breached the levee at Birds Point.

And what could prove to be a lengthy legal battle against the U.S. government is beginning.

On Tuesday morning, Cape Girardeau-based Cook, Barkett, Ponder and Wolz LC filed a lawsuit in a Washington, D.C., federal court seeking unspecified damages for the farmers and property owners in the spillway flooded out by the levee's breach. Later in the day, lawyers met with more than 80 residents of the floodway and surrounding areas and members of the media at the Clara Drinkwater Newnam Library in Charleston, Mo., to discuss the suit.

The civil action claims the property owners' Fifth Amendment rights prohibiting a government taking without just compensation have been violated by the corps' detonation of the levee system in Mississippi and New Madrid counties. The litigation, which includes 25 claimants, seeks class-action status. J. Michael Ponder, partner at the law firm, said the litigation counters the claims of the corps that the Army has the proper easements in the spillway to operate the project and flood about 130,000 acres.

The lawsuit summarizes the creation of the federal act that created the Birds Point New Madrid levee in 1928, and the revisions to the corps' plan of operating the levee in 1965, 1983, and subsequent changes.

" ... [T]he Corps never obtained the necessary flowage easements to allow execution of the 1983 version nor any subsequent versions of the Corps' plan," the lawsuit alleges. "Stated another way, the Corps did not have the easements over the affected property in the Floodway necessary to allow it to breach the levee at Birds Point."

A corps official declined to comment on the case Tuesday, but corps officials have alluded to the agreements signed long ago with spillway property owners in exchange for breaching the levee should the need arise. Around 10 p.m. Monday, the corps began a detonation project not seen since the flood of 1937.

Act only if forced

"These folks have had their farms and livelihood sacrificed to save the lives and homes of others up and down the river," Ponder said. "We hope the federal government will help them rebuild their lives, but our experience with government is that it does not act unless it is forced to do so.

"The good intentions of government often are strangled by gridlock; that's why we are filing this lawsuit."

While lawyers say it would be "premature" to peg a total of damages sought in the lawsuit, they do point to a 1991 government estimate that shows flooding the spillway could cause about $300 million in damage.

Ponder said the USDA's pledge to help ease some of the financial losses on the farmers could affect total damages in the suit.

"We hope the government will deliver on that promise, but it remains to be seen how far they will go to ameliorate the losses and lessen the impact of this flood," he said.

Easement histories

Phil Barkett, partner at the Cape Girardeau law firm, said lawyers aren't quite sure on 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," Barkett said. "We're not sure what all of those easements say. We've never actually seen [the corps] produce the easements."

A decision on the lawsuit could take up to two years, Barkett said, and the government will have 60 days to respond to the claimants' charges.

Daniel Babb, who has farmed in the floodway for nearly 35 years, said the lawsuit sounded like the right thing to do after hearing the lawyers' arguments Tuesday. In the hours following the breach and the flooding of the land he leases, Babb said there's a lot of despair and uncertainty in the farming community.

"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?" he said.

Some farmers said they felt like the litigation gives them some hope.

"I think of my childhood and going down there as a little girl, all of those memories," said Sammie Ponder, a resident of East Prairie, Mo., and an in-law of the attorney representing her neighbors and friends in the spillway. "As they keep using the word 'breached,' those memories have all kind of been breached and changed for us."


Pertinent address:

105 E. Marshall St., Charleston, MO

Map of pertinent addresses

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